[kictanet] eBay hit with £30m fine for sales of fake luxuries
Brian Munyao Longwe
blongwe at gmail.com
Mon Jul 7 10:33:27 EAT 2008
Good point, but how do you define 'harmful' and on whose terms?
This debate went full circle in USA, Europe and Asia and was also a
hot item for about 3 years in South Africa. In almost all cases the
end result was that the ISP 'cannot' be held responsible for content
that their customers put up, but they have a 'duty' to assist law
enforcement if and when 'illegal' content is reported.
In the case of the FM station there was enough evidence to point to an
internal policy to propagate illegal content.
So, I still come back to my earlier point. If I want to sell my Toyota
AE-100 - I have a right to 'identify' it using the brand (though the
brand does not in itself belong to me) - but I have a 'transient'
ownership as far as it relates to 'my' toyota. People even refer to it
as Bryo's toyota. Of course once it is sold, it now belongs to someone
else.
B
Sent from my iPhone
On 07 Jul 2008, at 9:13 AM, "Sylvester Kisonzo" <skisonzo at securenet.co.ke
> wrote:
> I think ISPs should be subject to prosecution for 'harmful' content
> that may appear or flow thro their networks, unless:
> -they have explicitly stated otherwise, in some kind of terms &
> conditions, transferring responsibility for any such material to a
> third party
> -there is evidence that they have put in sufficient procedures &
> controls in place to prohibit such
>
> They must have policies that govern the way they do business with
> their clients, otherwise they could be used as superhighways without
> traffic rules, and can end up like some FM stations in Kenya...
> Somebody ought to be in control. How do we ensure it is not
> deliberate action?
>
> In the case in question, probably it is a lesson for consumers to
> carefully read 'terms & conditions of purchase/use'. Unless such
> terms & conditions do not exist, only then would a disclaimer
> appended to web ads may not be necessary.
>
> To me, it is the amount we should be talking about.
>
> -----Original Message-----
> From: kictanet-bounces+skisonzo=gmail.com at lists.kictanet.or.ke [mailto:kictanet-bounces
> +skisonzo=gmail.com at lists.kictanet.or.ke] On Behalf Of Gakuru , Alex
> Sent: 06 July 2008 16:05
> To: skisonzo at gmail.com
> Cc: kictanet at lists.kictanet.or.ke
> Subject: Re: [kictanet] eBay hit with £30m fine for sales of fake lu
> xuries
>
> To me it is the same as suing an Internet Service Provider for
> allowing *illegal*
> content to flow through their network. Who then often blame P2P file
> sharing
> technology-irrespective of whether consumers are sharing Creative
> Commons
> content, such as ElephantsDream <http://orange.blender.org/> or Big
> Buck
> Bunny movies <http://www.bigbuckbunny.org/>
>
> Those very rich people should invest part of ther money to catch
> actual offenders
> not to condemn consumers wholesale and in the process block the
> majority
> from their rightful enjoyment of technological advancement to ensure
> internet
> openness free from private or government censorships is maintained.
>
> I wish we could discuss how (draft) e-transactions bill similarly
> exempts "mere
> conduit" service providers from legal action. E-bay is mere conduit,
> AFAIK.
>
> <excerpt>
>
> PART IV– LIMITATION OF LIABILITY OF SERVICE PROVIDERS
> 22. (1) A service provider shall not be subject to any civil or
> criminal liability in
> respect of third‐party material in the form of electronic versions
> to
> which he/she
> merely provides access to or for operating facilities for
> information systems
> or transmitting, routing or storage of electronic versions via an
> information
> system under its control, as long as the service provider:
> ......
>
> (2) The acts of transmission, routing and of provision of
> access referred to in
> subsection (1) include the automatic, intermediate and transient
> storage of the
> information transmitted in so far as this takes place:
> (a) for the sole purpose of carrying out the
> transmission in the
> information system;
> (b) in a manner that makes it ordinarily
> inaccessible to anyone
> other than anticipated recipients; and
> (c) for a period no longer than is
> reasonably necessary for the
> transmission.
>
> 23. A service provider shall not be subject to any civil or
> criminal liability in
> respect of third‐party material in the form of electronic
> versions for the
> automatic, intermediate and temporary storage of that data,
> where the
> purpose of storing such data is to make the onward
> transmission of the
> data more efficient to other recipients of the service upon their
> request, as long
> as the service provider:
>
> (a) does not modify the data;
> (b) complies with conditions on access to the data;
> (c) complies with rules regarding the
> updating of the data,
> specified in a manner widely recognized and used
> by industry;
> (d) does not interfere with the lawful use of
> technology, widely
> recognized and used by industry, to obtain
> information on the
> use of the data; and
> (e) removes or disables access to the data
> it has stored upon
> receiving a notification of unlawful activity by
> Service Providers
> referred to in section 26
> (f) Has not performed actions (a)‐(e) or any
> other illegal actions
> knowingly or intentionally
> (g) Conforms with the rules and regulations cited
> in this Act
>
> 24. (1) A service provider is not liable for criminal or
> civil liability in Hosting
> respect of third‐party material in the form of
> electronic versions where the
> service provider provides a service at the request of the recipient
> of the service
> that consists of the storage of data provided by a
> recipient of the service, as
> long as the service provider‐
>
> (a) does not have actual knowledge that the
> electronic version or
> an activity relating to the electronic
> version is unlawfully
> infringing upon the rights of a third party; or
> (b) is not aware of facts or circumstances
> from which the
> unlawfully infringing activity or the
> unlawfully infringing
> nature of the electronic version is apparent; and
> (c) upon receipt of notice of removal of
> information referred to
> in section 26, acts expeditiously to remove or to
> disable access to
> the data.
>
> (2) The limitations on liability established by this section
> do not apply to a
> service provider unless it has designated an agent to receive
> notifications of
> unlawful infringement and has provided through its service,
> including on its
> websites in locations accessible to the public, the contact details of
> the agent.
>
> (3) Subsection (1) does not apply when the recipient of the
> service is acting
> under the authority or the control of the service provider.
>
> 25. A service provider is not liable for criminal or civil
> liability in respect
> of Information third‐party material in the form of electronic
> versions if the
> service provider refers or links users to a web
> page containing an
> infringing electronic version or an unlawfully infringing
> activity, by using
> information location tools, including a directory, index,
> reference, pointer,
> or hyperlink, where the service provider:
>
> (a) does not have actual knowledge that the
> electronic version or
> an activity relating to the electronic
> version is unlawfully
> infringing upon the rights of that person;
>
> (b) is not aware of facts or circumstances
> from which the
> unlawfully infringing activity or nature of the
> electronic version
> is apparent;
>
> (c) does not receive a financial benefit directly
> attributable to the
> infringing activity; and
> (d) removes, or disables access to, the reference or link to
> the data message or activity within a reasonable time
> after
> being informed that the electronic version or the activity
> relating to such electronic version, unlawfully infringes upon the
> rights of a user or users.
> <excerpt>
>
> You could download the draft bill from consumers "work in progress";)
>
> <http://ictconsumers.org/pdfdownloads/etransaction_bill_2007_version_3.0_draft_5b.092407.pdf
> >
>
> regards,
>
>
> On Sun, Jul 6, 2008 at 2:41 PM, Brian Munyao Longwe
> <blongwe at gmail.com> wrote:
>> Good points Wes. But *if* I do own a designer set of Louis Vutton
>> suitcases.
>> Then decide that they are the wrong "shade of pink" (as many of
>> these rich
>> folk do). Then I have a right advertise it in order to find a
>> buyer. That
>> right includes *identifying* the merchandise. Maybe something like
>> 6 matched
>> Louis Vutton suitcases, never used.
>> What the aristo-brats are saying is that I shouldn't even use their
>> name if
>> Iwakt to sell the stuff.
>> Thieves!
>> :-)
>> B
>>
>> Sent from my iPhone
>> On 06 Jul 2008, at 11:05 AM, wesley kiriinya
>> <kiriinya2000 at yahoo.com> wrote:
>>
>> "...However, once I buy the product, and *pay them dearly for it*
>> does the
>> product *belong* to me? I say yes!..."
>> "...So, since I own it. Can I do whatever I want with it? Pour it
>> down the
>> toilet, give it to my watchman, give it as a prize for best
>> 'whatever' in my
>> son's school, or even sell it if I want to recapture some of the
>> price
>> premium I paid for the brand..."
>>
>> (Note: I'm not a lawyer nor do I know exactly what the law says
>> about this)
>>
>> If by *belong* you mean it's mine and I can mess and tear it up the
>> way I
>> want then some products might not *belong* to you. E.g. I read/heard
>> somewhere that you can't open up the XBox. It has something to do
>> with
>> Microsoft protecting technology. Another popular example is software.
>> License agreements come with restrictions.
>>
>> Basically a product is composed of a number of things: The branding
>> and
>> logos which are trademarked, the intellectual property and
>> technology which
>> are patented, and all these don't *belong* to you even if you paid
>> for the
>> product (Also note that the price you paid includes the cost of
>> researching
>> the patented technology and branding and logo costs but still they
>> will not
>> belong to you). What belongs to the consumer is being able to
>> consume the
>> product how it's the manufacturer advises you to consume it
>> otherwise your
>> warranty is void.
>>
>> Because of the variety of products that exist in the world today this
>> *belong* issue is a debate and that's one of the reasons open
>> source exists.
>>
>> As the E-bay spokesperson said it's more about manufacturers trying
>> to keep
>> a certain image. Counterfeits existed before ebay. Ebay has an
>> image of
>> being a place to find goods at an affordable price (depending on
>> quality)
>> but luxury brands are not associated with this sort of image.
>>
>> 8~)
>>
>> --- On Sun, 7/6/08, Brian Munyao Longwe <blongwe at gmail.com> wrote:
>>
>> From: Brian Munyao Longwe <blongwe at gmail.com>
>> Subject: Re: [kictanet] eBay hit with £30m fine for sales of fake
>> luxuries
>> To: kiriinya2000 at yahoo.com
>> Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
>> Date: Sunday, July 6, 2008, 4:48 AM
>>
>> Oh my, oh my, oh my,
>>
>> I have serious issues with this action.
>>
>> I think it goes directly against the individual right of the
>> consumer.
>> PLs allow me to elaborate.
>>
>> First, let's set the issue of counterfeit aside and consider the
>> context that has been set.
>>
>> Louis Vutton, Christian Dior, Hermes etc consider themselves
>> exclusive
>> brands that cater to the upper echelons of society. Fine, any vendor)
>>
>> of any product can pick his/her target market/niche and position/
>> brand
>> appropriately.
>>
>> However, once I buy the product, and *pay them dearly for it* does
>> the
>> product *belong* to me? I say yes! Even a court of law will uphold my
>> ownership right if I have 'proof of purchase'.
>>
>> So, since I own it. Can I do whatever I want with it? Pour it down
>> the
>> toilet, give it to my watchman, give it as a prize for best
>> 'whatever'
>>
>> in my son's school, or even sell it if I want to recapture some of
>> the
>> price premium I paid for the brand.
>>
>> What these aristo-brats are saying is that I cannot advertise it on
>> Digger classifieds in the Standard, the Sarit center billboard, ebay,
>> yahoo shops,or my personal website because none of them is part of
>> the
>> dealer network.
>>
>> This is totally wrong!
>>
>> Now back to counterfeit. Yes, there is a problem, but how do you
>> accuse a trading platform of
>> complicity in a case where the market is
>> Internet Based and allows anyone, anywhere in the world to advertise
>> and sell anything for any price?
>>
>> There should be other measures taken to dig out counterfeits and
>> protect the firms' investments in creation of their brands. There are
>> laws, and procedures for this.
>>
>> What these guys have done to ebay is classic case of shooting the
>> messenger.
>>
>> Am I the only one aggravated by this?
>>
>> Brian
>>
>> Ps France should have a 'FICTANET' to make noise about this.
>>
>> Sent from my iPhone
>>
>> On 05 Jul 2008, at 9:17 PM, alice <alice at apc.org> wrote:
>>
>>> Hi all,
>>>
>>> interesting ruling by French courts on 30th June....of E-commerce
>>> and
>>> brand protection, advertisement consumer protection and so many
>>> other
>>> issues.
>>>
>>> best
>>> alice
>>>
>>>
>>>
>> http://www.guardian.co.uk/business/2008/jul/01/ebay.hitechcrime
>>>
>>> eBay hit with £30m fine for sales of fake luxuries
>>>
>>>
>>> The world's biggest online auctioneer, eBay, was ordered by a French
>>> court yesterday to pay €38.6m euros in damages to the luxury goo
>>> ds g
>>> roup
>>> LVMH for negligence in allowing the sale of fake bags, lipsticks and
>>> designer clothes.
>>>
>>> The fine of more than £30m is the biggest eBay has faced in Euro
>>> pe a
>>> nd
>>> is the latest episode in a series of long-running legal battles it
>>> has
>>> fought with fashion and cosmetic giants.
>>>
>>> The site immediately appealed against the ruling and said luxury
>>> goods
>>> giants were using the issue of fakes as a "stalking horse" to
>> attack
>>> online commerce and keep a stranglehold of sales outlets to the
>>> detriment of consumers.
>>>
>>> The confrontation has
>> implications for the access of online shoppers
>>> to
>>> luxury brands through auction sites and also for eBay's business
>>> model
>>> as it faces the issue of how to police its platform of global sites,
>>> which at any one time have about 100m items for sale across the
>>> world.
>>>
>>> The issue has particular resonance in France - the base for some of
>>> the
>>> world's biggest luxury goods companies, who have placed themselves
>>> at
>>> the forefront of fighting counterfeit.
>>>
>>> The French company LVMH, the world's leading luxury brand, went to
>>> the
>>> Paris commercial courts demanding €50m in damages over two issue
>>> s: f
>>> irst
>>> it argued that eBay had committed "serious errors" by not doing
>> enough
>>> to prevent the sales of fake goods in 2006, including Louis Vuitton
>>> bags
>>> and Christian Dior products; it also argued that eBay had allowed
>>> unauthorised
>> sales of perfume brands owned by the group: Christian
>>> Dior,
>>> Kenzo, Givenchy and Guerlain.
>>>
>>> It said that even if the perfumes were real and not fake, their sale
>>> on
>>> the site violated Christian Dior's distribution network which only
>>> allowed sales through specialist dealers. The court ordered eBay to
>>> stop
>>> selling the perfumes or running ads for the brands, or face a fine
>>> of
>>> €50,000 a day.
>>>
>>> The ruling ordered eBay to pay €19.28m to Louis Vuitton Malleti
>>> er a
>>> nd
>>> €17.3m to its sister company Christian Dior Couture for damage t
>>> o th
>>> eir
>>> brand images and causing moral harm. It must also pay €3.25m to
>>> the
>>> four
>>> perfume brands for sales in violation of its authorised network.
>>>
>>> Pierre Gode, an aide to Bernard Arnault, the LVMH president and
>>> France's
>>> richest man, told AFP: "It is
>> a major first, because of the
>> principles
>>> that it recognises and the amount sought." He said the decision was
>>> crucial for the creative industry and "protected brands by
>> considering
>>> them an important part of French heritage".
>>>
>>> The ruling comes a month after another French court ordered eBay to
>>> pay
>>> the fashion house Hermes €20,000 for allowing the sale of count
>>> erfe
>>> it
>>> handbags.
>>>
>>> The site said it had stepped up its measures to prevent
>>> counterfeiting
>>> since 2006 and now spends $20m (£10m) a year keeping the site "c
>>> lean
>>
>>> ",
>>> using programmes to analyse suspicious sales and working with the
>>> owners
>>> of brand rights. Last year, 2m items suspected of being counterfeit
>>> were
>>> removed from the site and 50,000 sales stopped. Vanessa Canzini, an
>>> eBay
>>> spokeswoman in Europe said: "The big issue
>> here doesn't seem to
>> be
>>> to do
>>> with counterfeiting - if it was, they would have gone after the
>>> counterfeiters. It's about saying we are a luxury brand, we don't
>> want
>>> others selling our goods, even if they are real. That's why we will
>>> appeal this decision."
>>>
>>> In a statement, eBay said big luxury goods labels had a hidden
>>> agenda
>>> and were using fakes as a "stalking horse". "It is clear
>> that eBay has
>>> become a focal point for certain brand owners' desire to exact ever
>>> greater control over e-commerce. We view these decisions as a step
>>> backwards for the consumers and businesses whom we empower every
>> day."
>>>
>>> The group, which saw around $60bn worth of goods sold across its
>>> platforms last year, says that as a host for independent vendors, it
>>> has
>>> a limited responsibility and capacity to regulate what is sold. But
>>> luxury
>> goods groups have accused eBay, which earns a commission on
>>> sales, of facilitating forgeries and fakes by providing a
>>> marketplace
>>> for vendors who knowingly sell counterfeit items.
>>>
>>> The site is also facing other lawsuits worldwide: the New York
>>> jeweller
>>> Tiffany & Co has sued the site for turning a blind eye to sales of
>>> counterfeits, describing it as a "rat's nest" of fake goods.
>> It also
>>> faces action from L'Oreal in the UK and five other European
>>> countries.
>>>
>>>
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