Ebay's Verified Rights Owner (VeRO) Program Take-Down Procedure
By Adele A Pace
This guide examines the legality of the eBay VeRo take-down procedure. If you trade on
eBay you may know what it is like when one of your competitors requests eBay to take-down your
listings based on alleged violations of copyright. What happens when you follow eBay's procedures
to fight back but they don't work? This guide explains what other legal options you have to
stop your competitor doing this.
If you run a small business selling products through an online auction site such as eBay
you would be very familiar with how frustrating it can be when you are faced with fake take-down
notices by a rival trader who claims that your auction listing infringes their copyright rights.
Unfortunately these kinds of fake take-down notices under the eBay VeRO program are becoming
more and more common, and are often not legitimate.
You make your living by selling your goods on eBay through e-commerce, but eBay VeRO
take-downs are causing you to lose profits and customers to your competitors or other third-parties
issuing fake take-down notices. You have tried to fight back to prevent these fake take-down
notices by filing a counter-notice under the eBay VeRO program but eBay has just accepted the
allegations made in the take-down notice that you have infringed a copyright owners' rights.
The Digital Millenium Copyright Act (DMCA) was enacted by the US Congress to stop infringement
of copyright which occurs through the illegal reproduction of copyright on the internet. It
was designed to encourage co-operation between copyright owners and online service providers
like Internet Service Providers and other online intermediaries such as eBay from being held
liable for copyright infringement liability, but only if they take prompt action to remove
the allegedly infringing material. This is known as "safe harbor" protection, and eBay's VERO
program was developed to try to comply with the provisions of the DMCA to claim the immunity.
When the copyright owner contacts the service provider, ISP or web hosting company providing
details of the infringement, the service provider who receives a notice of infringement is
entitled to disable the website, therefore if eBay believe the take-down notice is valid they
are able to disable your auction. By taking such action eBay are protecting themselves from
infringement. eBay doesn't have to conduct much investigation to determine that material is infringing.
However under the provisions of the DMCA and equivalent provisions in other jurisdictions
you are entitled to be notified that the allegedly infringing material has been removed and
are given an opportunity to send a written notice to eBay stating that you believe your material
has been wrongly removed.
As an eBay trader you know you have the option of filing a counter-notice if you have
good reason to believe that the take-down is unfair or illegal.
The problem is that service providers are pressured to take down materials to protect
themselves from liability. Although eBay provides a means of explaining to eBay traders how
to have their auctions re-instated, the reality is that counter-notice is either not investigated
adequately or wrongly rejected by eBay. You unjustly receive a negative mark against your name
as a trader which can accumulate and can eventually get you suspended from eBay even though
you were the innocent party.
Take-downs based on alleged copyright infringement are often bogus, fraudulent and an
abuse of the law. Abusive take-down notices which are bogus occur often because companies want
to control who is selling their product. Companies also want to prevent sellers competing with
their authorised dealers and rely on the small seller either not knowing or taking the trouble
to fight a fraudulent take-down notice. Your rivals will also file take-down notices to try
to eliminate their competition. The DMCA makes it very easy for unscrupulous traders to file
fake take-down notices.
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