history, the future practice of
"distributing" copyrighted materials via websites like eBay
will be fought over by a Plaintiff who never attended a law class and
is acting as his own attorney and, a Defendant who never attended a
law class and is acting as his own attorney.
Missing will be the many
"real" attorneys who usually jump on any bandwagon as was
evident throughout the once famous NAPSTER proceedings. Missing will
be eBay and its army of attorneys who have jumped ship for a
"safe harbor" leaving eBay's loyal "sellers" to
sink or swim on their own. Missing will be the film
"pirates" who counterfeited the now infamous MANSON DVD's.
The Court found that because they only perform their evil
deeds on the East Coast, they cannot be subjected to jurisdiction in
California.
Left holding the bag are the eBay
"sellers" who have" defaults" pending against them
or are going to trial. A few had the good sense to "settle"
and some have dodged the process servers until the next lawsuit is
filed. There is a three-year statute of limitations so
eventually all will be prosecuted. In this case, where eBay was let
off the hook because Robert Hendrickson did not notify eBay, under
oath and penalty of perjury pursuant to the exact requirements of the
Digital Millennium Copyright Act that ALL MANSION DVD's were
unauthorized; the eBay "sellers" can each be held liable for
$30,000 in statutory damages pursuant to the Copyright Act and if
false or misleading advertising was used in the posted auction
listings, penalties can be tripled under the Lanham Act. We have
the eBay attorneys to thank for making the Court aware that certain
auction listings for MANSON DVD's are confusingly similar to the
official MANSON VHS cassette "trade dress", thus providing
for prosecution under trade and commerce laws even if no copyright
infringement takes place.
The critical issue to be argued and
determined on June 4th is when does the illegal
"distribution" activity as defined under the Copyright Act
actually begin? Because the "distribution" is conducted via
a website (eBay) on the internet, such an issue may present another
"first" for the Court in an already "first
impression" case. Because that decision alone could effect the
entire future of "distributing" copyrighted materials in
cyberspace, we can only be thankful that
NO "real" lawyers, except
the Judge, will be involved in directing such an important outcome.
The other significant issue to be decided at trial is whether the eBay
"sellers" can be hauled into Court in California, primarily
because they conduct their business on the eBay website located in
California. Obviously, such a decision will affect everyone who sells
on eBay or on any other website like eBay. It may be possible that
some ebay "sellers" don't realize that by selling on ebay
they are actually "distributing" nationally, thus effecting
interstate
commerce and making themselves
subject to federal "trade and commerce" laws. To
conduct such distribution activities without adequate business
insurance and a "good" attorney on retainer might be a disastrous mistake.
If eBay NEEDS an army of attorneys
and it does not even actually "sell" the
"counterfeit" goods itself, it should be rather obvious that
one should know firsthand exactly what the legal standing is of
any and all goods being distributed, or have an extra $30,000 plus on
hand at all times. The law says "even an unwitting buyer who buys
a copy of a copyrighted work in a secondary market can be held liable
for copyright infringement if the copy was not subject to a first sale
by a copyright holder." American Intern. Pictures Inc. vs.
Foreman. We don't want to scare anyone, but this is very serious
stuff, especially with major counterfeiting rings pumping out DVD's 24
hours a day in order to feed the eBay community appetite.
WHEN IS THE MANSON FILM PROJECT
GOING TO BE FINISHED? We get emails asking when will it be
available? Most are from loyal fans and we greatly appreciate
your interest, but we also know that the East Coast
counterfeiters are making the same
inquiry and can't wait to "pirate" the "new"
MANSON movie.
What a dilemma, everyone wants
e-commerce to work, especially the counterfeiters, but if the illegal
end of the spectrum overshadows the legitimate end, this whole
internet thing will never advance beyond the stage of "cyber swap
meet". Thus, when will it be "safe" to release the new
MANSON movie, "The Legend of Charles Manson" seems more like
the pertinent question.
