eBay Takes A Stand….
and North Carolina Joins
the Online Licensing Fray!

by Kathy Greer

The December 6th meeting of the New Hampshire Board of Auctioneers was memorable in that no other public members were there, including eBay lawyers. Such was not the case at the Board’s November 22nd meeting when eBay attorney Brett Gifford (2nd attorney to appear for eBay before the Board) of Devine, Millimet & Branch tried to convince the three Board members in attendance that "No one is actually the auctioneer" when selling merchandise with eBay, Inc. This editor owes the Board an apology, "Yes, I snickered". Couldn’t help it actually when Attorney Gifford tried to make the case that "the computer program" is actually in control once the online "Trading" begins." Note the Word: Trading. While Attorney Gifford agreed that the word "auction" appears all
over the eBay website and also in its advertising, he alleged that anyone "hosting" items, including for others, were not auctioneers but merely hosts engaged in "Online Trading". There was even some reference at some point in this meeting to electrons and electricity which personally I thought became so ludicrous I continue to chuckle over the momentary mental lapse during which I think I coined the phrase: De’m electrons made u’m do it!

               Ebay sues Website Over Their Link

According to an article by Hiawatha Bray in the Boston Globe on Dec. 14, a small Burlington, MA company that lists prices from dozens of internet auctions is being sued by eBay Inc. The dispute has far ranging implications, since it stems from whether a website can profit from linking to information contained on a different site without that site‘s permission.

Bidders Edge Inc. is one of several internet auction search services, where shoppers search for an item at many auction sites at once, instead of having to make separate visits to each website. According to Bray’s article, eBay spokesman Kevin Pursglove was quoted as saying, "You’ve got a company that is attempting to benefit off the investment that eBay has made over the past four years."

eBay’s position is that no other website can display eBay information without eBay’s permission. Two other auction search companies, AuctionRover and iTrack, have obtained licenses to include eBay listings in a separate area on their websites. According to the Boston Globe article, Bidders Edge also met with eBay to negotiate a licensing agreement, but allegedly found eBay’s terms unacceptable. The lawsuit filed against them in US District Court in San Jose cites a California statute written to fight "cracking," or breaking into computers. Strange as it may seem, eBay contends this is exactly what Bidders Edge is doing by displaying eBay auction information on the Bidders Edge site. The lawsuit also accuses Bidders Edge of a host of other illegal activities including trespassing, false advertising and copyright infringement.

According to reporter Bray, Bidders Edge position would seem to be one of "lots of people are doing it". The Boston Globe article said there are hundreds of search services on the Internet "that create indexes of data stored at other firms’ Web sites. None of them could continue to operate if they had to get permission from hundreds of thousands of Web sites before indexing them."

              Merry Christmas, everyone! And to all – Happy Trading!