Ebay question - First Sale Doctrine

[milleniumgroup]

What is the name of your state? WA

We are an Ebay seller domiciled and doing business out of the state of Washington.

A good part of the the merchandise that we acquire and resell is copyrighted designer clothing from several liquidators that do business exclusively with the Federated Group of stores. This group includes Macy's, Bloomingdales, Burdines and several other high end stores. What we purchase is end of season stock, customer returns and general overstock. Lots are almost exclusively well known brands of designer wear plus a sprinkling of house brands.

The Ebay VERO ( Verified Rights Owners ) program is notorious for instructing Ebay to yank auctions of copyrighted designer wear - many very legitimately for selling offshore counterfeits but also for "just because we feel like it and we think it might be counterfeit or it was not acquired through authorized channels". Ebay of course takes no responsibility or sides in a dispute with a VERO member and thus it falls on the seller to provide proof that the goods are genuine, are not counterfeit or grey market and legally acquired.

The first sale doctrine allows purchasers of copyrighted material to sell that which they have purchased without violating the copyright laws. The copyright owner must derive all revenue from the so-called first sale, and cannot control the future disposition of the article originally sold. On the assumption that the goods that we acquire from Bloomies and Macys is genuine, was acquired by Macys et al from the original copyright holder, what rights if any does the copyright holder have in blocking or cancelling our Ebay auctions.

If auctions are cancelled, what recourse do we the seller have? What is the course of action and what is the nature of the actionWhat is the name of your state?

 

[divgradcurl]

If auctions are cancelled, what recourse do we the seller have?

Sell somewhere other than eBay.

It's that simple. eBay is a private company, they can pretty much set the rules however they want. And they have their rules for a reason -- if they didn't respond the way they do, and it turned out someone WAS selling counterfeit goods, then eBay could be on the hook for vicarious and/or contributory liability for copyright infringement. To avoid such liability, eBay sides with the rights holders, and that's the way it is.

The first sale doctrine is a defense you would raise in court after being sued for infringement. eBay does not have to follow the first sale doctrine, they could restrict any sales of copyrighted goods if they wanted to -- it's their website, they make the rules.

EDIT: I suppose if you could somehow prove that the copyright holder was intentionally finling Vero complaints to keep you from selling lawfully-acquired goods, maybe you could file a suit against the copyright holder for tortious interference -- but eBay still wouldn't be liable in any way.