I normally don't comment on discussions I find on the eBay stores board, but in the past I have found there to be some very wise thinking going on there. Today I came across a thread discussing
MAP and VeRO issues, which I have been blogging about for the last couple of days (sorry, just call me Johnny One Note)
I really enjoy reading Carl's (oldspartantrader) posts because he is a wise man and though I don't always agree with him, I still value his opinion. Carl points out that these issues are not simple and that he is glad that eBay is fighting against MAP and other issues because it would be too costly for him to do it on his own. I don't disagree with that.
But, then I kept reading and found out, that according to poster (
itspostingtime), I don't know what I'm talking about in regards to
VeRO and eBay's ability to change the program.
itpostingtime says; "
unlike Randy Smythe, who has written about this without any apparent understanding"
So, since I can't clarify my position on the eBay stores boards, I figured I would do it on My Blog Utopia.
Here goes:
"eBay is committed to protecting the intellectual property rights of third parties and to providing its users with a safe place to trade. eBay created the Verified Rights Owner (VeRO) Program so that intellectual property owners could easily report listings that infringe their rights. It is in eBay’s interest to ensure that infringing items are removed from the site, as they erode buyer and seller trust." [bold is mine]
eBay created the program to comply with the
DMCA or Digital Millennium Copyright Act of 1998. Apparently this version of
VeRO was deemed compliant with the
DMCA, because there have been few if any challenges.
There is a
great document, written by intellectual rights attorney
Scott Pilutik, that describes the issues surrounding eBay's
VeRO program and heaven forbid he even suggests ways to fix it, which is what I am advocating. I suggest you take the time to read it (it is quite long). Here is a quick excerpt.
"Although the Internet seems custom-built for copyright infringement, trademark infringement also abounds, and nowhere is this more apparent than on eBay, the Internet’s leading online auction site, where over one million items, many of them brand name goods, are traded each day. As an online facilitator of services between parties exchanging brand-name goods, many which are not authentic, eBay may be liable as a contributory (or even vicarious) infringer.
But while secondary copyright
infringers can look to
section 512 of the Digital Millennium Copyright Act (“DMCA”) as a shield against liability, alleged secondary trademark
infringers, like eBay, have no such sanctuary. This unfortunate void has forced eBay to fashion a self-help remedy called the Verified Rights Owner Program (“
VeRO”), which essentially deputizes the rights owners themselves to police infringing listings on eBay. But just as the fox has little incentive to act prudently while guarding the
henhouse, rights owners have routinely overreached when armed with a quasi-official infringement enforcement badge. " [section 512 begins on page 8)
eBay's VeRO program has been a problem for sellers from its creation and though I have had no exposure to the program since 2006, I did deal with VeRO issues for my entire time at eBay. In the early days though, few manufacturers knew much about the program and even fewer organized to abuse the situation.
We are in a completely different environment today, then when VeRO was created. Today entire organizations have been created to abuse the system and manufacturers are getting even more aggressive with the program. eBay continually falls back on the "our hands are tied" defense which, I guess is sufficient for many, but not for me.
My main point in recent posts, that apparently wasn't clear enough, is that manufacturers are now going after sellers who are breaking MAP (minimum advertised price) or who sell product on eBay when the manufacturer has expressly told them not to. While they have the right to protect the value of their product and their pricing, using VeRO to do that is an abuse of the program and has nothing to do with intellectual rights or copyright. It is my position, that if eBay wanted to stop it, they could. So the "our hands are tied" defense is poppycock. They would rather get the PR benefit from a Dog and Pony show in Washington DC standing up for the rights of sellers.
How can VeRO be fixed? Mr. Pilutik has some suggestions"
"eBay similarly lacks any incentive to protect its sellers. As a result of its virtual monopoly on the online auction market, sellers have few alternatives to eBay’s sizeable market and are forced to sue the complaining rights holder if they wish to reinstate their listings. eBay punishes sellers who have had listings removed under the VeRO Program, and it has scant oversight in place to rectify wrongful listing removals at the hands of overzealous rights owners.
This inequity could be cured legally in one of two ways: eBay could modify its VeRO Program to account for the due process it owes its selling community, or Congress could enact a safe-harbor provision for online service providers under the Lanham Act similar to section 512 of the DMCA"
The point I have been trying to make regarding VeRO and I apologise if I was unclear, is that eBay has the resources available to fix the problems with VeRO, instead they tie the manufacturers abuse of VeRO into their PR campaign against MAP because it adds weight to their argument. "see what these bad, bad manufacturers are doing, they are abusing our poor little VeRO program to force seller compliance of MAP, we need to overturn MAP because we are powerless to change VeRO" I say, fix the damn VeRO program and protect your sellers from the abuse of that program, then you can go attack MAP -- MAP has enough complexity on its own. If some people don't grasp this distinction I can't help that.
I believe VeRO and MAP are basically two separate issues. I want sellers to be protected from abuse and I want Manufacturers to be able to protect their brands, but because of the abuses of VeRO in regards to fixing prices", and eBay's looking the other way, the two have become one for me.
I don't want eBay fighting a battle for me on one front while they let manufacturers shutdown businesses through VeRO by way of the backdoor that eBay has left wide open.
One more bit of info on VeRO: The Reason Codes
A VeRO member can get a listing taken down for any of these reasons. All they have to do is site which one. eBay does nothing to verify if they are accurate or not. Yet a seller with 5 or more VeRO notices in a month can get suspended.
Trademark - Item infringement
1.1. Trademark owner does not make this type of product
1.2. Item(s) is unlawful replica of a product made by the trademark
owner
1.3. Item(s) is unlawful importation of product bearing trademark
Trademark - listing content infringement
2.1. Listing(s) contains unlawful comparison to trademark owner's brand
name
2.2. Listing(s) contains unlawful use of trademark owner's logo
Copyright - item infringement
3.1. Software offered for sale in violation of a license
3.2. Item(s) is a bootleg recording of live performance
3.3. Item(s) is an unlawful copy of media (software, games, movies)
3.4. Item(s) is unlawful duplication of printed material
3.5. Item(s) is an unlawful copy of other copyrighted work (paintings,
sculptures, etc.)
Copyright - listing content infringement
4.1. Listing(s) uses unauthorized copy of copyrighted text
4.2. Listing(s) uses unauthorized copy of copyrighted image
4.3. Listing(s) uses unauthorized copy of copyrighted image and text
Other infringement
5.1. Item(s) infringes a valid patent (requires patent registration
number)
5.3. Item(s) violates a celebrity's right of publicity
5.4. Listing(s) content violates a celebrity's right of publicity
6.1. The Kitchen Sink - Sorry, I couldn't help myself.
Just my 15%