[Infowarrior] - BSA Goes to War on Piracy

[Richard Forno]

Software Assoc. Goes to War on Piracy

Lawsuits planned as industry association looks to sellers on sites  
other than eBay.

http://www.internetnews.com/bus-news/article.php/3761501

July 25, 2008
By Kenneth Corbin: More stories by this author:

In the murky online trade of pirated software, eBay may be the biggest  
marketplace, but it's not the only one.

As it moves to more aggressively combat illegal sales of knockoff  
software, the Software Information and Industry Association (SIIA)  
plans to begin filing lawsuits against sellers operating on several of  
the smaller auction sites on the Web, according to Scott Bain, the  
association's litigation counsel who handles online auctions.

Bain told InternetNews.com that the SIIA expects to issue its first  
lawsuits against non-eBay auction sellers in the coming weeks. Many  
eBay competitors have software categories on their sites, such as  
Overstock Auctions, ePier and eBid. Bain declined to name the sites  
that SIIA has been talking with, but emphasized that they have  
generally been cooperative.

"We've had some very positive discussions and interactions with the  
competitors to eBay," Bain told InternetNews.com. "So far, we haven't  
filed any suits against those auction listings, but we're ramping up  
activity in that area."

The SIIA's expansion of its litigation against individual sellers  
comes as the association is becoming increasingly exasperated with  
eBay for not doing enough to keep pirated software of its own  
marketplace. On behalf of its members, which include large software  
makers such as Oracle, Adobe and Apple, SIIA has filed and won  
lawsuits against dozens of eBay sellers, but Bain said the group is  
considering legal action against eBay itself.

"We've been trying to work with eBay and offer many different  
suggestions," Bain said. "Very few if any of those have been adopted."

In their annual study of the economic impact, the Business Software  
Alliance and research firm IDC estimated that piracy cost the global  
software industry $48 billion in 2007.

The SIIA has asked eBay to sell it ad space on the software-listing  
pages where it would warn about piracy, but Bain said eBay refused.  
Also denied was the group's request that eBay bar the sale of software  
through its "Buy It Now" feature.
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"The vast majority of the software sold in the Buy It Now feature is  
pirated," Bain said. "The ones using the Buy It Now feature are the  
ones trying to fence their goods as quickly as possible."

eBay, which did not respond to request for comment for this story,  
maintains a "fraud engine," an automated tool programmed with more  
than 13,000 rules to patrol the marketplace in search of fake goods.

eBay also gives trademark and copyright owners the chance to report  
fraudulent merchandise through its Verified Rights Owner (VeRO)  
program. Bain said that the SIIA uses that feature regularly, and that  
eBay is generally responsive to its takedown requests, but the  
merchandise is not removed immediately. Bain said that a large amount  
of pirated software is sold in the gaps between the issuance of a  
takedown request and the actual removal of the listing.

While his group's dealings with eBay have been "cordial," Bain said  
that "over time we've been discouraged by the inaction."

Still, the suits against sellers on eBay rivals will likely come  
before any litigation is brought against eBay.

"I don't mean it to sound like we're sitting here drafting a case  
because we're not," he explained.

The issue of eBay's responsibility for the authenticity of the goods  
on its marketplace recently went through a legal test, when a federal  
judge ruled that the online auctioneer was not required to police its  
site for counterfeit goods in a case brought by luxury jewelry maker  
Tiffany.

"The court is not unsympathetic to Tiffany and other rights owners who  
have invested enormous resources in developing their brands, only to  
see them illicitly and efficiently exploited by others on the  
Internet," U.S. District Court judge Richard Sullivan wrote in his  
opinion. "Nevertheless, the law is clear: it is the trademark owner's  
burder to police its mark, and companies like eBay cannot be held  
liable for trademark infringement based solely on their generalized  
knowledge that trademark infringement might be occurring on their Web  
sites."

That verdict followed two similar cases in Europe where the courts  
both ruled against eBay.

Though Bain said that the Tiffany outcome was not a "positive result,"  
it doesn't necessarily short-circuit any litigation the SIIA might  
pursue.

For starters, he pointed out it was only one judge's opinion in a  
bench trial, and that it would likely be appealed to Circuit Court.

Second, Tiffany was going after eBay on trademark infringement,  
whereas any case that the SIIA might file would be based on copyright  
law, with the relevant statues found in the Digital Millenium  
Copyright Act (DMCA).

Should the SIIA move ahead with litigation against eBay but fail to  
convince a judge that it violated the DMCA, Bain said his group's next  
step would be to appeal to Congress to update the 10-year-old  
copyright law's Safe Harbor provision to address the role of auction  
sites in the pirated-software trade.

TAGS: software, eBay, piracy, DMCA, SIIA