This guide examines the legality of the eBay VeRo withdrawal procedure. If you trade on eBay, you may know what it is like when one of your eBay competitors requests to remove your listings based on alleged copyright infringements. What happens when you follow eBay’s procedures to defend yourself but they don’t work? This guide explains what other legal options you have to prevent your competitor from doing this.
If you run a small business that sells products through an online auction site like eBay, you will be very familiar with how frustrating it can be when faced with false recall notices from a rival merchant claiming that their auction listing violates their Copyright. Rights. Unfortunately, these types of false removal notices under the eBay VeRO program are becoming increasingly common and are often not legitimate.
You make a living selling your products on eBay through e-commerce, but eBay VeRO takedowns are causing you to lose profits and customers to your competitors or other third parties issuing fake takedown notices. You have tried to fight back to avoid these bogus takedown notices by filing a counter notification under the eBay VeRO program, but eBay has just accepted the allegations made in the takedown notice that it has infringed on the rights of copyright owners.
The Digital Millennium Copyright Act (DMCA) was enacted by the United States Congress to stop copyright infringement that occurs through the illegal reproduction of copyright 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, to be held liable for liability for copyright infringement. copyright, but only if they take swift 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 provisions of the DMCA to claim immunity.
When the copyright owner contacts the service provider, ISP or web hosting company to provide details of the infringement, the service provider that receives a notification of infringement has the right to disable the website, therefore, if eBay believes that the removal notification is valid, you can to disable your auction. By taking these steps, eBay protects itself from infringement. eBay doesn’t have to do a lot of research to determine that the material is in violation of the law.
However, under the provisions of the DMCA and equivalent provisions in other jurisdictions, you have the right to be notified that the allegedly infringing material has been removed and you are given the opportunity to send eBay a written notice stating that you believe your material was deleted by mistake.
As an eBay merchant, you know that you have the option of submitting a counter notification if you have good reason to believe that the withdrawal 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 reset their auctions, the reality is that the counter notification is not properly investigated or is wrongly rejected by eBay. You unfairly leave a negative mark against your name as a merchant that can build up and can eventually get you suspended from eBay even though you were the innocent party.
Removals based on suspected copyright infringement are often false, fraudulent, and an abuse of the law. Abusive takedown notices that are false often occur because companies want to control who sells their product. Businesses also want to prevent sellers from competing with their authorized distributors and trust that the small seller will not know it or go to the trouble of fighting a fraudulent recall notice. Your rivals will also present takedown notices to try to eliminate your competition. The DMCA makes it very easy for unscrupulous merchants 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 initiate legal action. You may be taking action for misleading and deceptive conduct, interference with contractual relationships, defamation and violation of the equivalent DMCA copyright law in Australia (Copyright Act)
This guide explains how eBayer in Chicago recently did just that to prevent a competitor from submitting VERO removal requests to eBay claiming copyright infringement on products that they never had a valid copyright to. Copyright protection extends to certain products of the mind, but 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 covered by copyright law, and eBay has not investigated your claims properly, you can go to court and request a court order to prevent a person continue to issue takedown notices.
A US court recently heard a request for a temporary restraining order from an eBay merchant against a rival eBay merchant and held that the eBay merchant who had sent the notice did not have any valid copyright in the items. He had sent notices to eBay that led to his competitor’s auction listings being removed.
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 be successful as the defendant had no valid copyright in his furniture, as it was a “useful article” of commerce and was not subject to copyright protection.
Due to the risk of harm to the plaintiff arising from the suspension of its activities and the loss of goodwill and customers, the court determined that, ultimately, 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 lax eBay’s policies were in removing content simply based on an infringement allegation, thus reversing the normal burden of proof that falls on a plaintiff to dismiss an alleged intellectual property infringement.
However, the reality is that legislation like the DMCA and practical business operations often mean that, sadly, Internet service providers, online auction sites, and content hosts have to be the police, the judge. and the jury under the DMCA and do the best job possible. in responding to requests to remove material. Errors can occur.
The case serves as a reminder that EULA 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 complies 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 featuring articles or containing materials that they claim infringe their intellectual property rights.
This is an easy method for rights owners to request that auctions be removed from eBay without having to prove that the auction owner is infringing on the owner’s intellectual property rights, be it trademark or copyright. . eBay considers that the notification of the alleged infringement amounts to evidence. VERO is a means for rights holders to take a shortcut to close any trader. There is little due process for an alleged violation of the copyright of a VERO member. A court order is not required for a participant in the eBay program to inform eBay that a vendor closes.
eBay has developed guidelines and policies that describe items that cannot be listed on eBay and that may expose you to risk. These include items prohibited by law, those prohibited by eBay policy, and reported by a participant in the VeRO program. All the rights holder has to do is follow the withdrawal procedure. They don’t have to prove any of your allegations 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 on the copyrights of others can be removed and some listings are removed as the language or photos used in the item title or description violate eBay policy. This means that some items you have purchased from a store, or even possibly eBay, may not be allowed or may be removed due to posting policies.
This requires users and auction sellers to prove their innocence, which is automatically granted until such time as the owner of the intellectual property obtains a court order proving otherwise.
Online video services like YouTube have developed a notification mechanism to be eligible for safe harbor protection from secondary charges for copyright infringement. 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 highly exposed to misuse.
Rights holders have been using VeRO to suppress a vibrant aftermarket for their products and restrict competition. There is a counter notification procedure, as required by the DMCA, members who wish to object to removal must undergo a process whereby they must do everything possible to get eBay to engage in the counter notification process. If the right holder claims that the right being infringed is a trademark right, not a copyright, which is being infringed, eBay will not send a counter notification to the user at all.
Notifying eBay of an infringing item is very easy, and a business only needs to submit a form by fax, at which point they will be given an email address to speed up the process. Many non-copyright interests misuse the VeRO process to eliminate competing auctions. eBay states that it does not tolerate anti-competitive use of VeRO. Fraudulent violation notification is very easy.
Just three notifications from a VeRO member could result in the suspension or termination of an eBay user account and claims of infringement, and even if there is a successful counter notification, the infringement claims remain on the account holder’s record.
The s512 (f) DMCA provides for punishment for a false accusation through the VeRO program; however, there has not been a single instance in which this has occurred, despite studies showing that 30% of notices requiring claims to be withdrawn present a question for a court to consider. Thirty percent of the notices requested withdrawals of claims that presented an obvious relationship as to whether certain material was copyrighted or when a valid defense existed.
