Tuesday, July 29, 2008

eBay and software group butt heads over stopping piracy

The SIIA wants eBay to squelch short-term software auctions. Since the start of its anti-counterfeiting initiative, eBay seems to be practicing some other curbs on software banditry, to various degrees. If the two sides can't see eye to eye, will the battle actually land in court?

Although a lawsuit against eBay isn't "pending or on the immediate horizon," the Software Information Industry Association (SIIA) has sued other Web sites before, and Keith Kupferschmidt, senior VP of the Software Information Industry Association (SIIA), is very unhappy over what he views as eBay's failure to take real action against software piracy.

"I can't say that eBay is ignoring us, because they keep meeting with us," he acknowledged, in an interview with BetaNews. "But we keep giving them a list of 28 or 30 suggestions -- and then they keep coming back and telling us that most of these things can't be done," Kupferschmidt said, in an interview with BetaNews.

On the other hand, a spokesperson for eBay told BetaNews that the Web site has in fact developed anti-piracy policies, and he e-mailed a link to a Web page containing eBay's Trust and Security Initiatives, instituted in May of 2007.

In the interview with BetaNews, Kupferschmidt characterized some reports that appeared in other publications last week as "overblown." He denied, for instance, that the SIIA is actively considering seeking legislation that would force Web sites to prevent copyright infringement.

But he confirmed to BetaNews that the SIIA has talked internally about the prospect of a lawsuit against eBay, and he added that the industry association is currently in court against another Web site, known as USMLEPRO.com. As previously reported, BetaNews had sought confirmation of any lawsuit plans against eBay on Friday, but an SIIA spokesperson was temporarily unavailable before press time.

In one of the SIIA's current legal actions, USMLEPRO is being sued on allegations of "direct" copyright infringement, according to the SVP.

Yet if eBay does get hauled into court, the charges will probably center instead on "secondary liability," for allegedly "providing the facilities" used by software pirates, BetaNews was told.

Of all the suggestions the SIIA has raised to eBay, the SVP considers two to be most important: eliminating "Buy It Now" -- a type of listing that foregoes the auction process to allow for instant sales -- and getting rid of one-, two-, and three-day auctions on software.

"eBay might say they've done these things. But if you go up there on eBay's site, you'll see plenty of 'Buy It Now' and one- to three-day auctions for software," he charged.

Meanwhile, in an e-mail to BetaNews, the eBaby spokesperson confirmed earlier statements by eBay that the company is preventing volume sales on software and eliminating most short-term software auctions, although he mentioned nothing about "Buy It Now" listings.

In a quick look tonight at about 60 current eBay auctions for Microsoft Office, BetaNews noted that the majority were "Buy It Now' listings, and three of the auctions were one-day events.

On the other hand, no one auction was selling more than 50 copies of the software, most were hawking less than ten copies, and several had only one copy for sale.

"The sale of counterfeits on eBay is illegal, violates our business ethics, and results in negative buying experiences," the eBay spokesperson said, in his e-mail to BetaNews, which also included a link to the full text of eBay's Trust and Security Initiatives.

"Restrictions will be placed on some items that seem to be most favored by counterfeiters," he continued. "Restrictions may include: PayPal verification to list in volume; a minimum number of days as a confirmed registered eBay member to list in volume; one- or three-day durations may be removed as available options for these items; cross-border trade restrictions; delays in these listings appearing in search; [and] the number of listings per seller may be limited."

Yet while these initiatives clearly spell out which restrictions may be applied, they don't really say which restrictions are applied, to whom, or on which specific types of items. At an admittedly cursory glance, it seems that eBay could be paying more attention right now to eliminating volume sales by newer or less known sellers than to abandoning one-day software auctions, for example.

But although the spokesperson didn't highlight this point, eBay's initiatives also include new and strictly enforced regulations around feedback on sellers, which the site seems to see as helpful in combating software piracy and other forms of counterfeiting.

Buyers can now leave "detailed feedback" on sellers, as opposed to just "positive, negative, or neutral" ratings. At the same time, eBay has also eradicated negative feedback on buyers, so sellers can no longer retaliate in this way against buyers who leave negative feedback about them.

Could it be that eBay and the SIIA differ less about the need to curb software piracy than about the most effective ways of accomplishing this?

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