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[FYI] eBay not liable for bootlegged content


eBay not liable for bootlegged content 

A judge has ruled that online auctioneer eBay cannot be sued for 
allowing people to sell bootlegged audio recordings on its Web site. 

In a ruling late Tuesday, Superior Court Judge Stuart Pollak in 
San Francisco County dismissed a lawsuit brought by a Grateful 
Dead fan who sought to stop sales of illegal concert recordings 
of the band. 

"The suit argued that no legitimate brick-and-mortar auction house 
or no legitimate brick-and-mortar record store could sell infringing 
sound recordings to the extent that these are being sold on eBay and 
get away with it," said Charles Perkins, the lawyer for plaintiff 
Randall Stoner. 

The litigation did not focus on copyright infringement, as has the 
Napster case. In that suit, the recording industry is suing the 
song-swapping service in federal court for allegedly contributing 
to copyright infringement by allowing millions of people to download 
copyright music over the Internet for free. 

In dismissing the suit, Pollak said he based his ruling on 
the Communications Decency Act, which forbids computer service 
providers for being punished for the speech of others. 

"Plaintiff's attempt to impose responsibility on eBay as the seller 
of items auctioned over its service is no different from the
attempts that have been made to hold computer service providers liable
as distributors rather than publishers of defamatory or pornographic
materials," Pollak wrote. 

Courts have found that America Online, for example, was immune 
from a suit brought by a mother who discovered pornographic 
pictures of her young boy offered for sale online. 

eBay attorney Jay Monahan said the ruling allows it "to continue 
to operate our business and not fear facing liability at every turn." 

He said the San Jose, Calif.-based company regularly pulls postings 
from its site upon receiving complaints from copyright or trademark
holders of licensed music, software, movies, clothing and other goods. 

Perkins said he is considering an appeal. 

"We are trying to hold eBay responsible for its auctioning conduct, 
not for the speech of somebody else," he said.