eBay appeal: The gang’$ all here

Eric Krangel reports that Amazon and Google join in on the Tiffany v. eBay appeal:

It’s not hard to see where the interest is coming from: A ruling against eBay could have ramifications for Amazon Marketplace or Google Checkout as well.

Yes, ramifications indeed.  We contentiously reported earlier developments here.  Thinking this morning about the issues discussed at that first post, as well as subsequent discussion in the comments, we formulated the following possible way of stating our problem with the “what do you want eBay to do, anyway?” argument:

If you have a small business such as a flea market or are the landlord of a retail establishment, and are “willfully blind” to infringement taking place on your premises, and you profit from that activity, you may be held liable for indirect infringement.

But if you build a large enough business, in whole or part, on infringement — no problem!  What do you want us to do, anyway?

Ron Coleman

I write this blog.

6 Replies to “eBay appeal: The gang’$ all here

  1. Well, yeah, actually. Constructive knowledge is a legal construct that makes sense in a brick-and-mortar world of limited space (and therefore limited things to be aware of) and human interaction (and thus, actual people to be aware of those limited things). In the world of the internet, where business models are built on limitless automated transactions typically entered into (for the most part) without human involvement from the service provider’s personnel, how can that legal fiction be justified even theoretically? That’s all the more true when it’s not like the folks selling counterfeit Tiffany goods (as opposed to re-selling actual Tiffany goods) are tagging their auctions with helpful indicators that an automated program can be set to identify

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