This guide examines the legality of the eBay VeRo removal procedure. If you trade on eBay, you may know what it’s like when one of your competitors asks eBay to remove their listings based on alleged copyright violations. What happens when you follow eBay’s procedures to fight back but they don’t work? This guide explains what other legal options you have to prevent your competitor from doing this.
If you’re a small business selling products through an online auction site like eBay, you’re all too familiar with how frustrating it can be when faced with false takedown notices from a rival merchant claiming that your auction listing infringes your copyright. Rights. Unfortunately, these types of fake takedown notices under eBay’s VeRO program are becoming more and more common, and are often not legitimate.
You make a living selling your products on eBay through e-commerce, but eBay VeRO takedowns lose you profits and customers to your competitors or other third parties who issue fake takedown notices. You have tried to fight to avoid these bogus takedown notices by filing a counter notification in eBay’s VeRO program, but eBay has just accepted the accusations made in the takedown notice that you have infringed the rights of copyright owners .
The Digital Millennium Copyright Act (DMCA) was enacted by the US Congress to stop copyright infringement that occurs through the illegal reproduction of copyrights on the Internet. It was designed to encourage cooperation between copyright owners and online service providers, such as Internet service providers, and other online intermediaries, such as eBay, so that they are not held liable for copyright infringement. copyright, but only if they take immediate action to remove the allegedly infringing material. This is known as “safe harbor” protection, and eBay’s VERO program was developed to try to comply with the DMCA provisions for claiming immunity.
When the copyright owner contacts the service provider, ISP or web hosting company to provide details of the infringement, the service provider who receives an infringement notice has the right to disable the website Therefore, if eBay believes the takedown notice is valid, it can to disable your auction. By taking such action, eBay is protecting itself from infringement. eBay doesn’t have to do much research to determine that material is infringing.
However, under the provisions of the DMCA and equivalent provisions in other jurisdictions, you have the right to be notified that allegedly infringing material has been removed and you have the opportunity to send eBay written notice that you believe your material has been incorrectly deleted.
As an eBay merchant, you know that you have the option to file a counter notification if you have good reason to believe that the removal is unfair or illegal.
The problem is that service providers are under pressure to remove materials to protect themselves from liability. Although eBay provides a means of explaining to eBay merchants how to reinstate their auctions, the reality is that eBay does not properly investigate the counter notification or rejects it in error. You unfairly receive a negative mark on your name as a merchant that can build up and can eventually get you suspended from eBay even though you were the innocent party.
Takedowns based on alleged copyright infringement are often false, fraudulent, and an abuse of the law. Fake abusive takedown notices often happen because companies want to control who sells their product. Companies also want to prevent sellers from competing with their authorized dealers and trust that the smaller seller won’t know or go to the trouble of fighting a fraudulent takedown notice. Your rivals will also submit takedown notices to try and eliminate their competition. The DMCA makes it very easy for unscrupulous marketers to submit false takedown notices.
You can do something if eBay doesn’t protect you. You can file a legal action as if you were the victim of a fraudulent removal on eBay. You may have a number of causes of action against the seller depending on the jurisdiction in which you file your legal action. You may have an action for misleading and deceptive conduct, interference with contractual relationships, defamation, and violation of Australia’s DMCA equivalent copyright legislation (Copyright Act)
This guide explains how an eBayer in Chicago recently did exactly that to prevent a competitor from submitting VERO takedown requests to eBay alleging copyright infringement on products they never held a valid copyright on. Copyright protection extends to certain products of the mind, but it was not intended to extend to industrial designs or ‘useful articles’. If you have reason to believe that a third party is trying to protect something that is not subject to copyright law and eBay has not properly investigated your claims, you can go to court and seek an injunction to prevent a person from continuing to issue copyrights. removal notices.
A US court recently heard an eBay merchant’s application for a temporary restraining order against a rival eBay merchant, holding that the eBay merchant who had submitted the notice did not have any valid copyright in the items. that they had sent notices to eBay that led to their removal from competitors’ auction listings.
The Court recognized that the defendant had violated s512(f) DMCA by knowingly and materially misrepresenting that the plaintiff’s eBay auctions contained infringing material. The court held that the plaintiff would likely succeed as the defendant did not have a valid copyright in his furniture as it was a “useful article” of commerce and not subject to copyright protection.
Due to the risk of harm to the Claimant arising from the suspension of his activities and the loss of goodwill and clients, the court considered that, in general, the injunction should be granted. The Court held that issuing the order would be in the public interest. The Court also made a comment indicating how permissive eBay was in simply removing policies based on the content of an allegation of infringement, thus reversing the normal burden of proof that falls on the plaintiff to fire an allegation of infringement. intellectual property.
However, the reality is that legislation like the DMCA and the practical operations of business often mean that Internet service providers, online auction sites and content hosts unfortunately have to be the police, the judge and jury under the DMCA and do the best job they can. to respond to requests to remove material. Errors can happen.
The case serves as a reminder that EULAs and TOS do not always comply with the law and that one should always look beyond the terms of service when evaluating whether or not a website is compliant with the law.
EBAY routinely suspends user accounts and auction listings at the request of a VERO member. The VeRo Program established the Verified Rights Owners Program to allow rights owners to easily report and request removal of listings that offer items or contain materials that they claim infringe their intellectual property rights.
This is an easy method for rights owners to request eBay auctions be removed without having to prove that the owner of the auction is infringing on the owner’s intellectual property rights, be it trademark or copyright . Notice of alleged infringement is treated by eBay as equivalent to evidence. VERO is a means for rights holders to take a short cut to shut down any merchant. There is little due process for alleged copyright infringement by a VERO member. A court order is not required for an eBay Program Participant to notify eBay to close a vendor.
eBay has framework guidelines and policies that describe items that cannot be listed on eBay and may expose you to risk. These include items prohibited by law, those prohibited by eBay policy, and reported by a VeRO program participant. All the rights holder has to do is follow the removal procedure. They don’t have to prove any of their accusations in a court of law, unless of course you do what Design Furniture did and hold them accountable.
Any item that violates eBay policies or infringes the copyrights of others may be removed and some listings will be removed as the language or photos used in the item title or description violate eBay policy. This means that some items you may have purchased from a store, or even possibly eBay, may not be allowed or may be removed due to listing policies.
This requires auction users and sellers to prove their innocence, which is granted automatically until such time as the intellectual property owner obtains a court order proving otherwise.
Online video services such as YouTube have developed a notification mechanism to be eligible for safe harbor protection against secondary copyright infringement charges. eBay has been using a similar procedure since 1997, a year before the DMCA was enacted. However, the amount of power given to the VeRO member leaves the system very open to misuse.
Rights holders have been using VeRO to suppress a vibrant secondary market for their products and to restrict competition. There is a counter notification procedure, as required by the DMCA, members who wish to object to removal must go through a process whereby they have to make every effort to engage eBay in the counter notification process. If the rights holder claims that the right that is being infringed is a trademark right and not a copyright that is being infringed, eBay will not send a counter notification to the user.
Notifying eBay of an infringing item is very easy, and a business only needs to fax a form, at which point an email address will be provided to speed up the process. Many non-copyright holders misuse the VeRO process to have competing interest auctions eliminated. eBay states that it does not tolerate anti-competitive use of VeRO. Violation notification is very easy.
Just three notifications from a VeRO member could lead to the suspension or termination of an eBay user account and infringement claims, and even if there is a successful counter notification, infringement claims remain on the account holder’s record.
DMCA Law s512(f) provides for punishment for a false accusation through the VeRO program, but there has not been a single case where this has occurred, despite studies showing that 30% of ads requiring claims to be expunged present a question for a court to consider. . Thirty percent of the notices required removal of claims that made an obvious connection to whether certain material was copyrighted or whether a valid defense existed.
