After the designers, the perfume makers and the jewellers, the software industry may become the next group to sue eBay over sales of counterfeit merchandise. Keith Kupferschmid is senior vice president for intellectual property policy and enforcement of the SIIA, a trade organisation which represents software manufacturers such as Adobe, Apple, Oracle and Sun: Kupferschmid said in an interview that eBay’s “refusal to work with us will only push us closer and closer to a lawsuit”.
So far, SIIA has persued individual sellers of pirate software through eBay: earlier this week, one eBay seller was sentenced to four years’ imprisonment, and SIIA say that another six cases have been filed. They are also chasing those selling counterfeit software through other merchant sites: Scott Bain, their litigation counsel, told InternetNews.com that they expect to file their first suits against non-eBay sellers within weeks.
But this may not be enough for the SIIA. Kupferschmid said that they had made more than 20 suggestions to eBay on how the site could more effectively police software sales, ranging from banning the use of Buy It Now on software, delaying the appearance of software listings on the site to allow manual approval, placing a notice on the feedback of those caught selling pirate software, or running a paid-for ad warning buyers of the dangers of buying pirated software. But, he said, “they just say no.”
So are the SIIA going to sue eBay? “That’s something that we have talked about with our members and talked about internally,” said Kupferschmid. But Bain said, “I don’t mean it to sound like we’re sitting here drafting a case because we’re not.”
On eBay’s part, spokesperson Nichola Sharpe said “counterfeits are very bad for our business – we don’t want them on our site. People don’t want to buy them and we don’t want to sell them. But we can’t be the expert.” She said that the VeRO programme allows rights holders to request removal of infringing merchandise. CNet also cites eBay’s “fraud search engine”, which
has 13,000 rules that are designed to identify counterfeit listings based on words such as “replica” or “knock-off.” Listings flagged by the search engine are manually reviewed by customer service representatives.
Following the Tiffany verdict, any action taken against eBay would, says Kuperfschmid, rely more on copyright law than trademark law. He believes that the Digital Millennium Copyright Act could provide for eBay’s liability for infringing items sold via the site. And even if it doesn’t, the option to rewrite the law is always there: “there may be a point where we decide to go up to Congress and ask for legislation.”