Tabberone's Hall of Shame - Cyber Cops Net Enforcers Article Selling Auction Takedown Services

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Source: http://weblog.infoworld.com/gripeline/2005/05/19.html#a257
June 9, 2007 - content has not been altered. Links have been removed.

THE GRIPE LINE WEBLOG by Ed Foster
Selling Auction Takedown Services
Can you be kept from selling a used book on eBay? Apparently so, if the copyright holder's "enforcer" decides it doesn't like the looks of your auction. And eBay doesn't seem to mind.
A reader has a small sideline business on eBay auctioning used scuba gear, books, and manuals that he buys from dive shops in his area. A few months ago he received one of the dreaded VeRO (Verified Rights Owner) notices from eBay informing him that a number of his auctions were being taken down for reported infringement. The auctions were for seven service manuals for different Aqua Lung scuba equipment, but the claim of infringement was coming not from Aqua Lung itself but a company called NetEnforcers.
The reader's first question was whether NetEnforcers was actually representing Aqua Lung. "I studied NetEnforcer's VeRO page, and none of the reasons they give for objecting to an auction pertain to what I'm selling," the reader said. The scuba equipment manuals he sells -- for four or five bucks tops -- are usually unbound three-hole-punched loose-leaf sheets used by the scuba shops for training classes. "They are clearly originals - not photocopies or print-outs. They are printed on high quality paper on both sides, often in color. They are identical to the manuals that dive shops and many online sources sell all the time. I have every right to sell them."
To dispute the takedown of his auctions, though, the reader had no choice but to contact NetEnforcers. After weeks of e-mail exchanges, NetEnforcers finally said that Aqua Lung had agreed to let him re-instate three of his auctions. The other four, although basically identical in type to the one Aqua Lung were OK to sell, were deemed infringing. NetEnforcers explanation for why was not clear, although they suggested that perhaps Aqua Lung thought the four manuals might be printouts from a CD.
"It took almost three months to go through this process, even though eBay states you should have a resolution in a matter of hours," the reader says. "And they still refused to let me re-list four books that I have a perfect right to sell." And his problems with NetEnforcers were not over, as he soon received another VeRO notice from eBay. This time the auction being removed was for a service manual for scuba equipment from Oceanic Worldwide, but that company too was apparently using NetEnforcers as its eBay watchdog. "My complaint to the second cancellation received a terse 'you cannot copy manuals and sell them' from the same people at NetEnforcers, who already know that's not what I'm doing," says the reader. "They said they would check with Oceanic, but it's been weeks and they are no longer even responding to my e-mails. The only hope I had was to file a counter notice with eBay for each item cancelled. I did this, but so far eBay has totally ignored this as well."
There's more at stake here for the reader than just the few dollars those cancelled auctions might have brought him. "The bottom line is that I now have two serious copyright violation complaints on file with eBay," he says. "One more and it's possible I could be banned. I'm not a huge seller on eBay -- perhaps $1,500 in a good month. Now I'm working under a constant threat. Each time I list a manual will it be cancelled without warning? Will I be banned from eBay because some third party complained? I can understand eBay needing a policy to deal with this, but they need a working system that also takes the innocent seller into account!"
You'd think eBay would also have see itself as having a little stake here, but an eBay spokesman had few answers to my questions about NetEnforcers. "EBay's VeRO program allows a rights owner or its agent to report infringements to eBay," the spokesman wrote. "A number of companies have appointed NetEnforcers or similar companies as their agent and thus we accept their reports, provided we first receive confirmation from the company that the agent is authorized."
And there may be a little bit at stake here for you and me, as well. It's pretty easy to see how a company selling auction-takedown services like NetEnforcers describes on its website would be motivated to see infringement where none exists. If such an organization gets to act as policeman, judge, jury, prosecutor, appeals court, and jailor in cases where it is in fact a very biased party, there will be no limit to what bogus claims can be made in the name of intellectual property rights.
It's bad enough that rights holders themselves stretch the bounds of DMCA-inspired takedowns; but we're going to lose a lot if self-appointed copyright or trademark police are given free rein to harass whomever they please. Things like fair use, first sale, and a competitive marketplace are just a few of them. Selling a used book on eBay is becoming a more imposing task than any of us, including eBay, should want to see happen.
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