Wednesday, September 25, 2013

Did eBay Steal our T-Shirt Guide?

@dearrichblog Dear Rich - can you weigh in on eBay plagiarizing our guides (see our blog for details)? What can we do? Has eBay changed enough of the text to avoid infringing on our material? Does the fact that we original wrote the first two guides on eBay mean that eBays own the content posted? eBay doesn't own the content you post but the current eBay user agreement states that "When providing us with content or posting content using eBay's Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future."
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).

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