Wednesday, September 25, 2013
Did eBay Steal our T-Shirt Guide?
That seems to give eBay a nonexclusive right to copy and post materials that you post on the site. That makes sense because eBay doesn't want to get your permission every time it reposts or features content and photos for listings, ads and promotions. However, we're not sure that extends to the right to modify or copy guides. Unfortunately, the user agreement is ambiguous enough for eBay to argue that it has the right to do what it's doing. (Of course this is all premised on the fact that you joined eBay and consented to the user agreement.)
A bigger problem. We think you may have a bigger hurdle than the user agreement. When there are a limited number of ways to express something -- for example how to search eBay for a brand of t-shirt -- copyright law permits a liberal amount of copying (this rule is known as the "merger doctrine"). At the same time, you have no proprietary right to use the brands -- Screen Stars, Hanes, Sportswear, Logo 7, Artex, Trench, Brockum, Giant and Gem -- mentioned in your guide. Yes, their reappearance in the eBay guide proves that somebody had their fingers on your work ... but even if it's plagiarism, that doesn't mean it's copyright infringement (as we discussed in a recent entry).