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List:       dmca-discuss
Subject:    Re: [DMCA_Discuss] Time-Warner uses DMCA to stop CD resale
From:       "Matthew T. Russotto" <mrussotto () speakeasy ! net>
Date:       2003-11-20 18:08:20
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On Nov 20, 2003, at 12:49 PM, H. Wade Minter wrote:

> -----BEGIN PGP SIGNED MESSAGE-----

 > http://www.gripe2ed.com/scoop/story/2003/11/20/8226/4649

>
> The VeRO program is eBay's way of conforming to the takedown 
> provisions of
> the DMCA (Digital Millennium Copyright Act), which requires an Internet
> host to quickly remove any material that a copyright holder claims to 
> be
> infringing. Knowing he'd received the CD as part of a legitimate (and
> widely publicized) Gap promotion, the reader was naturally upset that 
> his
> credibility as an eBay auctioneer could be damaged by having auctioned 
> it.
>

There's no DMCA issue here.  There is a possible contributory or 
vicarious liability issue, but since the material eBay is hosting isn't 
the copyrighted material, the DMCA isn't really involved.  This is just 
eBay hiding behind the skirts of the DMCA to justify their extreme 
aversion to controversy; they don't need these particular auctions, so 
it's easier just to ban them than to tell Time Warner to stick it.

If the DMCA were really involved, the sellers would have the right to 
submit a counter-notification.

About the only possibility to do anything about it is for the sellers 
to sue Time Warner for tortuous interference with a contract.  Not 
likely.

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