Jack Malvern
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In fiction his enemies are evil wizards and magical beasts, but Harry Potter’s latest adversary is a real corporation with a turnover of more than £2 billion.
J. K. Rowling, Harry’s creator, is suing the online auction hosting service eBay after unscrupulous sellers used the Indian version of the website to sell unauthorised versions of her books.
Rowling is not the first person to sue the website for breach of copyright, but she has won a unique victory by obtaining an injunction that prohibits eBay from listing illegal copies of her work. The court order is a setback for eBay because it is the first time the company has been obliged to police its sellers’ auctions for copyrighted material.
Ebay, which is also fighting similar complaints by Tiffany in New York and Christian Dior Couture in Paris, denies that it is responsible for the auctions its users conduct on its website, and claims that it is impractical for it to vet every sale.
The injunction presents difficulties for eBay, whether it succeeds or fails in policing its users’ sales. If the company is able to remove all sales of electronic copies of Harry Potter books then other brands will demand similar treatment when their rights are infringed by sellers. If it fails, it will be in contempt of court.
Akash Chittranshi, who is representing Rowling at the High Court in Delhi, told The Timesthat the injunction could set a precedent. “If they can do it in this case then they can do it a lot more,” he said. “This is the first time eBay has been compelled to take measures to prevent e-books being sold.”
Ebay did not respond when contacted for comment, but in previous cases it has argued that its website is a platform or marketplace and not an auction site.
Rowling’s lawyers claim that if eBay profits from sales of illegal goods then it should be held liable.
“In Indian copyright law, if the premises of a person is being used for an infringing activity, that person would be liable for that activity,” Mr Chittranshi said. “The market is not immune from liability.”
The court order is binding until the hearing resumes on May 23. Rowling and Warner Bros, the studio responsible for the Harry Potter films, brought the action in 2004 when books of Harry Potter stories were put up for sale on Baazee.com, the old name for eBay’s India operation. Rowling has never authorised electronic versions of any of her books.
Neil Blair, Rowling’s legal adviser at the Christopher Little Literary Agency, said that she welcomed the court order. “Over the years eBay has appeared to be unwilling to control sellers on their site offering pirated or forged Harry Potter items for sale to innocent fans,” he said. “We have asked eBay on numerous occasions to assist by taking preventative steps to avoid these sales – steps that we are aware they can introduce. As these requests were not heeded we had no choice but to seek judicial intervention.
“J. K. Rowling has previously warned fans on her own website about the sale of fake signed books and other pirated Harry Potter e-books on eBay.”
In September, Christian Dior Couture and its sister company Louis Vuitton Moet Hennessy filed a claim for €37 million (£25 million) in the commercial court in Paris, alleging that eBay has not acted strongly enough against the sale of counterfeit goods on its website.
Tiffany, the American jewellery company, brought a similar claim in February last year at the Southern District Court of New York. Ebay said that it would fight both actions vigorously.
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Am having same problem. My father-in-law manufactures and supplies Highlandwear and accessories. One sunny day he had some products lying around his house. I being an amateur photographer got my husband to model these in the garden. I'm not IT literate enough to lock photos. A rival company that imports replicas of my father-in-law's products (bad enough) found and stole a photo, chopped off the head and has for months now been using it to sell their products. This clearly infringes my Intellectual Property rights even by eBay's policies and guidelines. Ebay say the first complaint form must be by fax and that they'd then send an email address for future complaints. I've no fax so borrowed father-in-law's to send first complaint. I've spent the past MONTH trying to get SOMEONE, ANYONE at eBay to send electronic form as the offender continues to use my pic. Guess what i keep getting? Automated replies that instruct me to fax my first form so they can send me electronic form for future!
Atia Chalmers, Perth, UK
I represent a company whose products are regularly being sold on Ebay as illegal copies.
Ebay don't seem to appreciate the illegal trade they are supporting with many trade sellers using their site to peddle copied items not individuals clearing out unwanted items as Ebay like to think they are.
We have complained to Ebay on numerous occasions and asked why they allow people to sell items to which the seller is clearly not the copyright or brand owner in some cases advertising up to 40 copies of the same item.
No one buys 40 products at full list price and sells them on Ebay for a fraction of the cost unless they are copies. Ebay seem unwilling or unable to understand this simple fact.
We have even offered to provide Ebay with terms to help them identify illegal copies before going on sale but they say it is not their responsibility to check these for us.
Ebay should therefore be prosecuting the illegal sellers from their end for abusing the terms of use for Ebay then!
MKR, Slough, Berks
Hi eveyone it seems that all good things come to an end! why is it that we no longer live in a world were we can use our own judgment? If we sell an item then why on earth is anyone other than the seller liable.
Ebay holds the door open for everyone to sell or buy and it should be the seller that is targeted for the sale by the company wishing to take action.
If i was to rent a shop in a highstreet it would be somewhat unlkley that the free holder be liable for the actions of lease holder.
It is my opinion that sights are being targetted in a big brother watching way. We are all aware that companies would not take on the individual seller.
I hope that we can resolve this without us all being delt with in a one shoe fits all policy.
brad , sutton, uk
Why is it that Ebay is stating it is not an "auction" when, in it's Search option you can select "All Items", "Buy It Now", and... "AUCTION"!?!
I have sent numerous emails to Ebay regarding Shill Bidding, Excessive Shipping, etc.. only to have the generic "We'll look into it, but because of 'Privacy policies in place' we can't tell you anything else..." To me it sounds like "Hey, got your email, and because we don't care enough to look into it, we'll make you think we are by sending you this email. But, by saying we "can't contact you because of privacy issues", we don't have to look into anything because you'll just assume we're doing something about it because you won't get any updates on what's going on..."
And Ebay wonders why I refuse to sell on their site..
Tazandra, Independence, Mo
I personally lost a lot of money and time when Mary Kay Co used the Vero Ebay system to take down auctions of Mary Kay products I had listed. I wasn't a dealer and should have been allowed to sell the huge lots of items I bought from a dealer going out of business. At the same time there were over 7000 auctions of other Mary Kay items up for sale that never got taken down. I fought them and won and was able to relist my items but it took money and time that it shouldn't have. Ebay needs to spend less time counting their money and more time taking care of sellers.
C Green, Houston, MO
While I agree with the concept of the (court) decision, I fear the final outcome may be a my heavy-handed and lopsided use of the VeRo program. It has been proven in the past that copyright/patent holders will use the VeRo program to block the sales of legitimate items which be in competition with them. I don't pretend to have the answer but a balance must be found.
That being said, it is obvious that eBay will gladly look the other way in order to get more listing and final value fees. They have proven that in their total failure to enforce their excessive shipping costs policy. I agree that they have only themselves to blame.
Gary, NW, USA/Montana
About time, I would be mad too.
Liza, SR,
Finally somebody's holding eBay to their word. Hopefully it'll stick.
BenPanced, St. Paul, Minnesota, US,
Good for you JKR. You go girl!!
Lucy, Cleveland , USA/ Ohio
If Ebay is not an auction site, as it claims, they why does Google, it's partner on the internet, list it as such.
Ebay seems to be more interested in trying to maintain an image as a safe place to "trade". It is failing miserably by taking the "head in the sand" attitude. It will not admit, among other things wrong, that every day there are hundreds of hijacked accounts, listing 1000s of fake listings each and every day. They have been given the tools to help stop this activity, but refuse to use these tools. Instead they rely on Ebay members that voluntarily spend hours finding and reporting the fake listings. Using, by the way, the same tools that were offered to their Trusr & Safety Department.
Rick Ryder, Charlestown,
eBay has always had a list of what one can not sell on their site, and they have demonstrated the ability to vet nearly every auction for compliance with that list. Their repeated refusal to respond to notification of unlawful activities seems arrogant because the process to correct that is already in place and operating rather well. Now they are operating under the threat of externally imposed penalties and they have only themselves to blame.
Wilson, Largo, USA/Florida
Ebay is a mess. They seem to remove items of legitimate sellers while the fakesters and fraudsters seems to get away scot-free.
The latest problems have seen Ebay trying to grapple with this hacker who calls themselves 'Vladuz', and it seems 'Vladuz' has managed to access Ebay's database.
Tim, London, UK