Shady Lane Retailers, Manufacturers, ePay, AudiogoN, Paypal or whatever. Buying and selling advice.

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Dueling presumptions...that will be $30,000, please.

Posted by John Marks (M) on March 15, 2008 at 09:37:52

In Reply to: Not Sure....... posted by groove on March 14, 2008 at 20:31:07:

Before the last big round of revisions to the US copyright code, there was a presumption that a work was not protected by copyright unless certain formalities were observed.

That was changed, and so now there is a presumption of protection, unless there has been a "dedication to the public domain."

This would be an easy case if the eBay listing had carried a copyright notice such as "All images and text copyright 2008 John Doe." That would protect the property, regardless whether fair copies had been deposited in the Library of Congress or an Application for Registration had been submitted.

But I gather that was not the case. The "infringer" may argue that a posting to an auction site without a specific claim of copyright is in fact a dedication to the public domain, while I expect the aggrieved party will claim that such a dedication should not be implied but rather must be explicit.

I wonder--does eBay have in its small print, small print which I would expect that by using the site you argree to be bound by, regardless whether you have read it, a provision that all uploaded text and pictures are agreed by all parties to be the IP of the creator?

I have not followed the case law in this area for years--perhaps there is a case on point.

But it is not as though the "infringer" would totally lack legal arguments what were at least facially plausible.

US Federal Courts have jurisdiction over such claims, but you also must get in personam jurisdiction over the purported infringer, so that usually means associating out-of-state counsel and litigating in a foreign forum.

There may be state common-law remedies as well, but the only thing that would make the case theoretically worth while are the damage and attorney's-fee provisions of Federal copyright law.

I personally would not take on such a case without a $30,000 retainer.

Best of luck,

JM

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