Freeware developers, this ain't cool.

[John_Cillis 2,406]

"FYI and without wishing to reveal sources, I can report that the Ebay seller in question IS knowingly marketing "freeware" acquired from any number of internet sites."That was already revealed in this thread. I saw a number of aircraft listed, some of which I had a hand in helping in. That's why I tried to alert ebay.Edit: What surprises me is ebay still allows the product to be listed even though they have been alerted according to some of the responses in this thread.-John

[Guest av84fun]

<>Not exactly John. Your post referred to a few aircraft that you had a hand in developing. My information is that ALL of the seller's airplanes are freeware.With respect to reporting to Ebay, logic indicates that they would have to conduct some sort of investigation and could not take anyone's word that infringement is taking place. And removing merchandise from their site is likely WAY down on Ebay's priority list.In addition, no action for infringement can be taken until after a 30 day written notice to the suspected infringer has been issued. Such notices normally demand an accounting and payment of royalties but on freeware there are none so all you could demand would be an accounting and a SHARE of the infringer's profits.If memory serves, he is offering 100+ models for $20.00 so the owner of any one infringed copyright would only be entitled to $0.20 in ACTUAL damages PER TRANSACTION but the plaintiff has a choice between "actual" and "statutory" damages...the latter being as much as $30,000.00 PER TRANSACTION.In fact, the judge would have discretion to raise the statutory damage award to as high as $150,000.00 per transaction if the infringement was deemed "willful" and if the judge feels that the infringer is wealthy enough to need to "feel the sting" of the law.If I were a freeware developer, I would purchase any supposedly infringing CD in order to have EVIDENCE of the infringement. Doing so will yield the name and address of the seller for payment purposes at which point the seller's world could be ROCKED by any experienced copyright attorney since...ASSUMING PROPER LANGUAGE IN THE FREEWARE USE TERMS...the infringer would be the **automatic** loser...in a BIG way depending upon how many developers elected to pile on.And by the way, supposed ignorance of the law prohibiting infringement on "freeware" copyrights is not an excuse and would not shield the seller from an allegation of "intentional" or "willful" conduct. In my opinion, the court would find that the sell did or SHOULD HAVE read the EULAs.Finally, as to removal of the auction, while the law on digital copyrights changes frequently, the last I know and I am quite certain that such is still the case, assuming that Ebay is provided PROOF of the infringement, if they don't remove the auction, then they become guilty of "contributory" or "vicarious" infringement.For those interested, below is a quote from a case on point.You will note that Ebay had the suit dismissed but ONLY because, under the Digital Millennium Copyright Act, the had to have KNOWN that the auction merchandise was infringed upon. But KNOWLEDGE is a high standard to prove. They must be given PROOF that any reasonable entity would accept as fact...not just a complaint by some unrelated party or even the mere complaint by a supposed copyright owner. That owner would need to furnish Ebay with documentation re: their ownership and evidence that the merchansise for sale infringes on that copyright.Regards,JimRobert Hendrickson v. Ebay, Inc., et al.Case No. CV 01-0495 RJK (RNBx), 2001 U.S. Dist. Lexis 14420 (C.D. Cal. 2001)Court grants defendants' motion for summary judgment, and dismisses claims brought by plaintiff, the owner of a copyright in the documentary "Manson", against defendant eBay arising out of the use by unaffiliated third parties of the eBay auction site to sell unauthorized copies of the Manson documentary. The Court held that plaintiff's claims for contributory and vicarious copyright infringement were barred by operation of Section 512© of the Digital Millennium Copyright Act. The DMCA offers service providers such as eBay protection from copyright infringement claims arising out of the storage of material on their web site provided, inter alia, (i) they do not have actual knowledge of the infringing activity or promptly upon gaining such knowledge move to prevent the use of their service to further it, (ii) do not receive a financial benefit directly attributable to infringing activity they have the ability to control, and (iii) expeditiously remove material from their service on receipt of an appropriate notice. THIS IS NOT LEGAL ADVICE. I AM NOT REFERRING TO ANY PARTICULAR SELLER OF ANY PRODUCT BUT RATHER AM DISCUSSING THIS MATTER AS A GENERALIZATION!Jim

[John_Cillis 2,406]

Interesting info Jim, thanks for posting. I believe at least one of the parties who contacted ebay here had such proof of infringement. It could also be argued that ebay makes it difficult to report infringement--for instance one shouldn't have to provide DOB in order to report infringement--which is one item that can very easily lead to identity theft concerns. Ebay needs to change their reporting practices so non-members can report such issues without having to submit more personal data than is required for investigation. I would also hope that someone, in the copyright holder's absence, could report work having been infringed rather than an investigation being dead in its tracks until the copyright holder reported the issue.-John

[Guest av84fun]

<>Agreed John, but while Ebay can make their own policies, they can't make law. No copyright owner can be forced to go through any particluar procedure in order to give due notice to Ebay.Rather, the owneer could simply send certified mail to the legal affairs department of Ebay with sufficient particulars to establish credibility... or better yet, have an attorney send the notice after which Ebay would proceed at its own risk.But at the end of the day, one or more of the copyright owners have to stand up to defend their own copyrights.Determining any infringer's identity is easy as suggested in my earlier post. If I were such a person and if I got a letter on a law firm's letterhead demanding...for starters, that the seller cease and desist from further acts of infringement and to destroy any existing illegal CD's or face the sanctions of Title 17 of the U.S. Code (the Copyright Act) then I would start to immediately shake in my boots...escpeically since the Act provides for criminal as well as civil sanctions in cases of willful infringement with a profit motive.Possibly a "Committee" of a half dozen of the major freeware developers could band together to share the expense...which wouldn't be much.Again, not referring to any particular seller on any particular auction site or other means of sale, let me tell you that those caught at such blatant acts of infringement can be brought to justice without all that much cost and are basically just S C R E W E D because they will almost certainly have financial penalties imposed upon them AND be required to pay not only their own lawyers but the plaintiff's legal fees too.All the above assumes that the copyrights were lawfully created and documented and that the material sold actually infringes. In such cases, there simply is no defense and Federal judges REALLY don't like infringers!!Regards,Jim

[n4gix 4,947]

Well, FWIW, all of that particular seller's items for auction have been pulled as of 11:53 CST that at least.

[rightseat 277]

Yup, chock one up to the good guys!:>