Rare Book Monthly
Ebay's Victory in Fraud Case Offers an Example to Booksellers and Google
30,000
What, then, are the implications for the book and paper trade? The criticism of eBay and similar sites, long employed by booksellers, is that they are not a safe environment in which to buy. Claimed first editions may not be firsts, condition flaws may not be delineated in a way expected of a reputable dealer, pages might be in facsimile, autographs and inscriptions may be faked (this one is a HUGE risk), book and paper may simply be manufactured frauds. The seller may well be as unaware as the buyer, or perhaps looks the other way for fear of what he may learn. The item may lack clear title, that is, it may be stolen, or a discarded old government document which more recent legislation now declares still to be government property. Ebay prices are usually quite low, but there is risk in buying there. The principle established in this decision is that as long as eBay makes some general attempt to locate and prevent fraud, it has met its obligations. In the case of books and paper, which lack the trademark protection of Tiffany jewelry, that obligation may be limited to taking down such frauds if they are so notified. As Tiffany warns on its eBay "About Me" page, "BUYER BEWARE."
As noted earlier, as a bookseller, I would feel free to point out this drawback to eBay buying. The Court has made it clear that eBay is not responsible for fraud on its site, and their sellers may not provide satisfaction either. There is far greater security in buying from a knowledgeable bookseller, particularly one with an established reputation and a strong refund policy. That said, sellers should not overdo the impact of eBay's successful claim to lack of responsibility. Security is a valuable benefit, but like anything else, overcharging for it will drive customers away. Authentication adds to a buyer's comfort and increases the likelihood he will buy, but it does not make a book more valuable. The bookseller may not have to discount as greatly as the eBay seller to make a sale, but a $500 book is still a $500 book, not a $1,000 one.
As mentioned previously, while this case has no precedential application to the Google Books case, some of the logic used could well fit. The major issue with Google Books has been its displaying material from old books that may, or may not, still be under copyright, and if so, the copyright holders may be practically impossible to locate or determine. Google has chosen to make such books available for viewing, requiring the copyright holder to inform them of a violation (rather than first seeking the copyright holder's permission). To us, this situation seems strikingly similar to the one eBay faced.
Certainly, the cases are not identical. One involves trademarks, the other copyrights. Ebay simply lists others' material, it doesn't post the violating items itself in the way Google Books does. There are plenty of differences a court could rely upon to reach a different verdict. Nonetheless, the similarity is that both rely on the aggrieved party to raise an objection, and when they do, promptly rectify it. Otherwise, Google Books and eBay post or allow to be posted violating material, and each makes a commission when the item is sold. Both have a "generalized" knowledge that there are infringements on their site, but neither has knowledge about specific items. A demand that either absolutely eliminate fraud and infringement would essentially close down their valuable services. If I were either Google or a bookseller, I think I might like to cite this case as an example.
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