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Game Companies Sue Yahoo! 134

Posted by emmett from the whipcrack dept.
Splitzy writes, "Nintendo of America, Sega of America, and Electronic Arts filed a joint class action suit yesterday against Yahoo! for the sale of illegal and counterfeit game products. They say that Yahoo! profits from these sales and is fully aware of the illegal activities. For the full story click here."
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Game Companies Sue Yahoo! More

Game Companies Sue Yahoo!

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  • an analogy for you naysayers (Score:1)

    by Anonymous Coward
    guy1: "I really want to kill that guy. He pissed me off."
    guy2: "Here, use my gun. It will make it easier for you."
    guy1: "Hey thanks!"

    Is guy2 guilty of anything? You're damn right he is. Don't see the similarity? If you're dumb, read it this way:

    guy1: "I really want to make money from illegally selling software!"
    guy2: "Well, we get a lot of visitors looking to buy cheap software. You will make more money if you use our site."
    guy1: "Thanks!"

    Yahoo! is doing something wrong. They should make efforts to stop this behaviour. It has been going on on their site for well over a year (that is as long as I have noticed it). People sell games, business software, operating systems, etc.

  • Re:What a bunch of cunts (Score:1)

    by Anonymous Coward
    Hi, I'm a moderator, I like to lick cunts that's why I modded this down, just to remind me of last night with my gf. :-)

  • If Yahoo! doesn't charge for the service and makes money solely off of banner advertising, then they are not profiting from the sale of these illegal items. If 10,000 visitors go to the auctions section, buy an illegal item, and click on a banner ad, Yahoo! makes the exact same amount as if these 10,000 visitors hadn't bought a thing!

    They aren't profiting from the SALE of ANY items. They'd probably prefer it if they could maintain the traffic without having to list any items at all! (which require server space, etc)

  • And a appropriate [visca.com] vulture logo with it, perhaps? :) Then the few of us who are tired of lawsuit news can just put it where it belong with Amiga [slashdot.org] "news".. :> Jón
  • Ebay has a group of people set aside to review auctions for legality. They have the power to pull any auction that they deem is illegal or immoral in some way.

    I read an article about out it a while back, for I can't for the life of me remember where.. possible wired.

    The "team" is only a couple of people. They do most of their work based off of tips given by people viewing auctions. They'll get an e-mail that say something like "This auction is illegal", and they review that auction.

    I'm guessing Yahoo dosen't yet have a group like this, or possibly they just haven't been doing a very good job.
  • Surely this doesn't let Yahoo off the hook, it just lets Yahoo sue the sellers for whatever they have to pay Nintendo.

    Steve
  • see subject
  • "You should always side with the company that is allegedly doing the ripping off,..."
    Looks like there's always somebody on duty in Redmond : )
  • "Sotheby's couldn't auction a stolen 1957 Jaguar, or a counterfeit Picasso as a real Picasso"
    As long as they get away with it, that is as long as nobody detects the Jag as stolen or the Picasso as a fake, why can't they? Illegal doesn't mean impossible and unethical doesn't mean un-do-able. Especially if there's money to be made.
  • I didn't call it a troll and if I really thought that it was I would probably have just ignored it. Didn't call you an MS lackey, either, just pointed out the (I assume unintentional) similarity of viewpoint. There are a lot who post here whose ethics get very situational with regard to big companies (esp. software, music, movies, etc.)
  • MS Office in pre-www days? I don't think so.

    It hardly diminishes my point, but you're wrong anyway. Microsoft started shipping something called Office in 1989. The term "World Wide Web" wasn't coined until 1990 and NCSA Mosaic wasn't released until 1993.

  • adding stuff to gifs and stuffing ads in text files can be completely automated....

    No kidding. Of course those things are automated, but that doesn't mean they happen at completely zero cost to the BBS/WWW operator. Somebody had to develop the software tools, install, maintain, debug, etc. Automation turns out to be the most efficient way to spam your brand all over everything; automation alone is probably not the best way to prevent illegal auctions. My point is that Yahoo should care enough to make a reasonable effort. Some combination of allocating a human being to respond to emailed complaints and a software tool to flag suspicious auctions for further investigation by the same person would be enough.

  • Oddly enough, the two previous centuries were: Where governments crushed personal liberty and individual rights, and called it 'socialism'.

    Doesn't look like much has changed except the morons who can't keep their definitions straight.
  • Sigh. Ok, read this slowly if you have trouble with comprehension:

    Yes, they're both forms of economic systems, which amazingly enough makes the comparison a valid one. But governments impose and control them nevertheless.

    And the US is by several means a capitalist country. It's not a pure capitalism, but that doesn't exist any more than pure socialism or pure communism.
  • There's no "h" in Gloucester. I don't believe the company got shut down (the argument against them was that is was illegal to <i>store</i> slot machines in Mass., even though they were actually being used offshore). I'm not sure, but the company may not be coming back due to lack of business.
  • Unless Nintendo did something like that, or else got everyone who bought one of their systems to sign a contract saying they'll only buy Nintendo authorized games, they have no right to change anyone a licensing fee.

    Is this kind of like my DVD player that will only play licensed DVD's and my CD player that will only play licensed CD's?
  • Because your town and street corners analogy is flawed. Suppose this auction was non-digital, but you still had all the other elements of people with things to sell, people that want to buy them, a place to meet, and price setting mechanisms. Yahoo is providing the place and the mechanism.

    If they're repeatedly told by a copyright owner of violations, they're liable. Providing the place, setting up a pricing mechanism, but failing to to perform even minimal supervision of the activities does make them liable in the real world. So it should in this case also.
  • You don't sue Walmart for selling me the duffel bag that I stuffed the cash into.

    I want to comment on that line...
    The bags Wal-Mart sells for money stuffing are far superior to any other duffle bags I have used.
    Frequently, when the dye packs explode, lesser bags become saturated, and stain the floors of my Honda. In addition, it is perfect for storing the fingers that I have to chop off of hostages.
    It's time for Wal-Mart to be recognized for its high quality bank robbing tools.

    "Don't try to confuse the issue with half truths and gorilla dust."
    Bill McNeal (Phil Hartman)
  • But that doesn't mean Yahoo! reads each email. Email sent saying 'your auction has been placed' or 'your bid has been accepted' are all automated. They'd have to hire a whole new staff.
  • oh, um. my bad. I misunderstood you.
  • could yahoo then go after all persons who have sold these illegal items through there auction site ?
    still no one can sue microsoft for selling faulty goods can they ?

    <p><a href="http://www.burgatronics.net">www.burgatronic s.net</a></p>

    Burgatronics [burgatronics.net]

  • Although I don't agree with everything you said and the tone with which you said it, I agree with the principle.

    Pirating is illegal and if a shop sold pirating tools (even if on behalf of someone else innocently) it would be prosecuted. If you want to distribute pirated stuff, you either have to do it free of charge over newsgroups, or find your self a server in a country where it doesn't apply - like Turkey. The Internet servers are still governed by the laws of the country they reside in.

  • There is a device known as the Doctor 64, which houses a standard PC IDE CDROM drive inside a case which sites ontop of the Nintendo 64.

    It interfaces with the unit via the cartridge port. A CDR version is also availiable. ROM images [maximimum 100 mb, typically much smaller (Mario64 is actually 8Mb)] are stored on a standard ISO9660 filesystem, using the extension .n64, in the root dir of the CD-ROM.

    Fifteen games typically fit ona single disk, and these compilations are sold throughout the markets of Hong Kong.

    The CDR version simply grabs the contents of the current cartidge and burns them to a clean disk. You need a PC to eb able to collect the images and make the compilation.

    No, I've never stolen an N64 title with it. I'm just interestyed to see how the crack was done. When I want games, I buy Linux ones and support those that support the penguin
  • "What if you put a server on a ship in international waters with a radio or satelite connection (or even a cable connection for that matter), and use it for totally illegal purposes?"

    Cool idea but if say some big corporation gets mad at you for doing this, since its international waters with no laws, they can just sail out with a bigger boat and run you over. :)
  • .. That's just tooo funny.
    _______________

  • The point here is about them allowing a crime to be committed through negligence and through refusal to take action.

    Or is this because of a principled objection to copyrights in certain areas. Would your opinion change if the crime being committed was drugs being sold or body parts or something similarly nasty? It's still a crime and I believe that anyone who allows a crime to be committed through negligence shares some responsibility for the crime.

  • Apparently the article is talking about Yahoo's auction site but they don't make that very clear. After the first paragraph the article seems to imply that Yahoo is directly selling pirated stuff.
  • I'm going to write a really lousy game, give it a list price of $1000, hire several people to sell "unauthorized copies" of it for $1 on all the auction sites, then sue each of the auction sites for compensation for my lost sales! The beauty of this model is, my software doesn't have to be any good in order for me to get rich!

    All sarcasm aside, perhaps the games companies should consider going after the unscrupulous profiteers who are bootlegging their CD, rather than the auction site that can't afford to monitor every posting.

  • gotta remember those html tags
    Insert "non-US companies" between out of and for in most.
    Sorry!
    -Marc
  • This TOS seems to be absolving them from getting sued if someone gets ripped off. But if I let someone sell crack out of my house, I can go to jail. Even if I have a disclaimer.

    -marc
  • As long as they get away with it, that is as long as nobody detects the Jag as stolen or the Picasso as a fake, why can't they?

    If they get caught the auction house is liable and could be shut down (there are laws about this kind of activity). Obviously this is not impossible, but that doesn't make it legal.

    -marc

  • Normally the big N and Sega and companies like to go after small companies and individuals... let's see what happens when both are billions-dollar worth corporations :)

  • Okay, fair enough, poor interpretation maybe :) As for the laws in non-US countries, IIRC both Malta and Taiwan lack copyright laws, making them the obvious place so situate such a site.

  • Err, what? The original poster was talking about Nintendo (or whomever) being able to prove that they had sent warnings to Yahoo about such auctions. I was saying that they would be able to use E-mail records to prove this. It's got nothing to do with the automated responses from Yahoo's auction service.

  • You could make an abolute fortune if you played it right. Of course, not being able to ever come ashore in most countries might make it seem less attractive, but something like this is bound to happen sooner or later...

  • For example, if I tell you that there's a guy selling cocaine on your front lawn, and you don't do anything about it, then you're an accomplice.

    If you told me that, I'd be out there like a shot with some cash *grin* But I agree with your point from a legal standpoint.

  • They didn't even mention who was doing the bootlegging and that kind of thing. All they did was make ambiguous statements about Yahoo supporting piracy. Come on people if you want even a chance to get our support then you gotta give us real information. Is yahoo supporting college kids selling cd collections of roms or is this fulltime big piracy like you see in asia?
  • It doesn't appear to bode well for Yahoo!. It's kind if hard to say 'I didn't know it was illegal' when the ad [yahoo.com] says "This is a cdr copy of the game."
  • Did you read the article? They're suing because of backups of games being sold at Auction on Yahoo!.
  • Guy1: "I need to kill guy3. I see Guy2 has his window open, maybe he has somethign I can use" Guy1 hops into Guy2's house and takes gun,knife,baseball bat, or CAT5 (for choking).

    Guy2 discovers that he's been burglerized, but doesnt know when.

    Guy3 was already killed.
    Be thankful you are not my student. You would not get a high grade for such a design :-)

  • It also says just after:
    Which is the SAME friggin argument, which has the SAME problem.

  • Next, we'll hold newpapers liable if someone sells stolen property via the classified ads.

    Gimme a break.

    cheers,

  • Aside from the issue of having actually been told about the bootlegs, are they not also making a percentage of the sales, or a listing fee?

    IANAL but, if they knowingly make any money from the auction or sale of illegal/stolen merchandise, shouldn't they be atleast civilly libel, if not criminally?

    I think the content arguement would hold up if they weren't actually participating in the auction (e.g. Free auctions like the kind that happen on usenet)
  • Ahhh yes... this post exemplifies most of the "karma whore" posts. People who know they don't have anything good to say so they attack those who do.

    The charge isn't even logical in this case -- the original poster said something that seems to go against the grain of the "Slashdot majority," so he stands a better chance of getting moderated down instead of up.

    It's hard to whore karma as an AC too.

  • Comment removed based on user account deletion

  • WTF? (Score:1)

    by Andy_R ( 114137 )
    In Yahoo!'s case, they appear to be involved in the transaction if they take a cut, like E-bay does. If... Yahoo!'s auction site is a free service... it may have common carrier status.

    So, Yahoo could councievably get the lawyers off their backs by (get this) sending the pirates money back!?!?

    Simply return the auction fees for any illegal products and they could escape liability AND stick 2 fingers up to Nintendo/Sega? This can't be right, but it seems like the logical conclusion of what you are saying.

    - Andy R.

  • I'm confused. Where exactly does Yahoo retail "counterfeit videos"?

    Are they referring to some auction selling that Yahoo hosts, or do they mean that Yahoo actually retail pirated products (which I would find hard to believe)?

  • Yahho! has its own auction site (http://auctions.yahoo.com IIRC) and obviously people have been auctioning off illegal warez. While I'm in all favour of suing Yahoo! (being a editor of ODP), and I support the companies in preventing software piracy, we have got to ask ourselves what will happen to other auction sites like eBay etc.

    Then I'd argue that the Gamespot article is way off beam. "Online retailer lawsuit"? Are online auctions "online retailing"? Is Yahoo really being accused of the "sale of illegal and counterfeit video game products"? I think not.

  • Sorry, emmett, but I think your summary might be a little off.

    Yahoo doesn't normally profit directly from auctions at all. They profit from page views in the form af some banner-ads, and charge a set fee to list items in a "preferred" manner, which (if I'm not mistaken) has little to do with the item actually selling at all. Therefore they don't profit from the sale.

    I seems to me that the case is founded on some pretty thin ice, and any lawyer worth his salt would be able to make a very good defence.

    As for Nintendo et all, I would appear that they've taken up arms against what they could find to be the worst-case-example, and if they lose here, the lose the whole ball of wax. Ebay and others might do well to join forces with yahoo on this issue to protect their own interests.

    TangoChaz

    "It's not enough to be on the right track -- you have to be moving faster than the train." -- Rod Davis, Editor of Seahorse Mag.
  • Sega and Nintendo between them have contributed far more the gainful use of computer technology than Yahoo ever has

    This doesn't automatically make them right.

    Yahoo do a big dull web directory and cash in on the net bubble.

    You've probably not been on the site for at least a couple of years. Yahoo is definitely one of the most useful places on the 'Net, the "dull web directory" part is probably less than 5% of what they do now. Want examples? Easy (off the top of my head, I believe they do much more):
    - maps and directions
    - auctions, shopping, etc. (duh)
    - games
    - chat, clubs, e-mail
    - calendar, address book, free webspace
    - bill pay
    - movie showtimes
    - stock quotes
    ... and much much more. I agree, many (most) of this things got started by someone else and are available at other places, but Yahoo has great UI, it's really fast, and all these things are interconnected in one place. In fact, when I need to find something I only use two sites - Google for keyword search and Yahoo for everything else. By the way, Yahoo is one of the few big Internet companies that actually makes money. These guys ARE good, they are not just some random iwannamakemoneyfast.com.
  • According to the article Yahoo is breaking the law.

    "Under current law, Yahoo! is liable for the facilitation of such counterfeit goods."

    So even though Yahoo is not directly selling the merchandise they can apparently get in trouble for just facilitating it. Unfortunately the article does not say (or provide a link to) the exact law which Yahoo is violating which is a pity because it would be nice to see what constitutes 'facilitation' and if merely providing a link falls under this category.
  • Yahoo may not receive a direct profit from the auction but they do receive money from ads which are on the auction site. Therefore they do profit by the auctioning of illegal merchandise on their site. IANAL but from a casr I seem to remember awhile back with Compuserve the law seems to say that if you police/monitor a site at all then you are liable for all content on that site. Maybe this has changed or is not true (anyone know?)
  • For example, if I tell you that there's a guy selling cocaine on your front lawn, and you don't do anything about it, then you're an accomplice.

    Though this analogy doesn't go far enough, since the guy could claim that he was afraid of the seller, or had put up "no tresspassing" signs or something. Yahoo basicly set up some chairs and tables in their front yard so everyone could be comfortable, put signs around the neighborhood saying "lots of stuff for sale here" and then ignored reports of what some people were choosing to sell.

    Sounds liable as all hell to me, but thats for a judge to decide.

    -Kahuna Burger

  • What if you put a server on a ship in international waters with a radio or satelite connection (or even a cable connection for that matter), and use it for totally illegal purposes?

    It might depend on what the laws are in the port it sails from, and the country where it is outfitted. IIRC, there was a similar thing going on out of Glouchester where a ship would sail people far enough out to be in international waters then open up a casino on board. Regulators were trying to shut them down because they said their only purpose was to avoid the law. Don't know how it turned out.

    -Kahuna Burger

  • Yeah, i`m not saying they did anything wrong. Or right! I`m just saying that IF the law says its wrong to hold auctions of illegal stuff, regardless of how much effort it would take to prevent it, then saying `this isnt our fault` wont mean anything in court.

    P.
  • >once a content providor starts excersizing editorial control of any content, they become liable for all content on their site, regardless of whoever posted

    What, you`re telling me that if you posted a message selling drugs (or whatever) on a Republican party/Big Company site chat room/message board, then they`d be responsible? Lets hope no-one does it and brings it to the attention of the authorites then; that`d be terrible!

    P.

  • I'm confused... (Score:2)

    by Anonymous Coward
    The copyright infringer is another large company. Who am I supposed to be pulling for here? :P
  • "Who am I supposed to be pulling for here? :P"

    I know it was a humourous comment, but I think this really indicates / (and most people's) way of thinking. - Don't bother thinking about who's right or wrong, just side with the [nice|cool|modern|trendy|like me] ones.

    :-|

    Actually, Sega and Nintendo between them have contributed far more the gainful use of computer technology than Yahoo ever has. Sega has written some of the best, most creative games ever. Yahoo do a big dull web directory and cash in on the net bubble.

    However, this is a grey area - it seems highly analagous to stolen goods sold in car boot sales. Any car boot sale owner knows someone is probably selling something hot on a given day, but they are hardly in a position to do anything about it. And yes, of course they profit from it, and of course they know it is going on.

  • Are the owners of a flea market (an open market where anyone can show up and set up a table to sell whatever they want for a small fee, or even for free) responsible for making sure all items being sold are legal? Anyone know? An online auction should logically be governed by the same set of laws. Whether it is or not probably has yet to be determined.
  • What, you`re telling me that if you posted a message selling drugs (or whatever) on a Republican party/Big Company site chat room/message board, then they`d be responsible?

    That was one of the aspects of the CDA: if you excersize editorial control over what people are posting, then you are responsible for what people post there, and do bear some liability if someone does, in fact, try to sell drugs from one of your discussion forums. On the other hand, if you excersize no editorial control (a la' slashdot), you cannot be held accountable for what others say and do.

    Of course, running a discussion forum is arguably different from running a flea market or auction site, so the argument may not hold anyway. If I were the defense I'd argue the auction site is simply a discussion forum with a couple of fancy features (like storing bids and offers). If I were the prosecution, I'd compare it to a bar, which cities do close down if illegal activity is going on. On the other hand, yanking a liquor license is a coercive activity, not a penalty for criminal wrongdoing resulting from a judgement, so the prosecution could lose on that argument as well.

    Either way, it is by no means a slam dunk against Yahoo. Perhaps quite the opposite, in fact...
  • Why some idiot who moded this down? This is actually a very good suggestion.
  • One word Shrinkwrap.
  • Ok, so I'm a bit rusty since I studied this stuff, and goofed a bit. The pertinent language states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider". (47 U.S.C. 230) This, of course, has the effect of providing ISPs with relative immunity from liabel suits. And it has been used many times in this context, far more than just the Zeran case.

    Nonetheless, the area where I was wrong (the degree of specificity to liabel) has little bearing on this matter. Yahoo is not merely a carrier of information in this context (thus 47 U.S.C. 230 should not apply). They recieve a direct financial benefit (e.g., they profit from every additional sale of pirated goods) from the infringing conduct (their role may infact exceed that). And further, they have the right and the ability to stop that conduct. This is sufficient for the test of vicarious liability. Although it is not even necessary to prove that the party had knowledge (though if that party can prove they had no knowledge, they may be excused), it can be proven by the plaintiff that they did have knowledge.

    The bottom line: The CDA most likely won't stand up here (if they even decide to try to use it). Although I can not tell you exactly how the rest will turn out, Yahoo is not exactly in the clear here.

  • Yahoo's auction thingie is just a tool, and it's clearly not solely intended for illegal use. It seems to me that the gaming companies should have just as much a case against the pirates' ISPs, all the routers in between the ISPs and Yahoo, and all the routers in between Yahoo and the pirates' customers. They should also sue 3Com for selling modems or ethernet cards to the pirates without taking any steps to prevent them from being used for illegal purposes. And what if the pirates and their customers use a web browser to interact with Yahoo? Why haven't they sued the web browser authors? Have the web browser guys have put code in their web browsers to prevent people from using the browsers for illegal purposes?

    This is, of course, absurd.

    The criminals here are the pirates, and anyone who knowingly buys pirated merchandise. Not the tools and services that the criminals. If I rob a bank, you don't sue Honda, Texaco, Jiffy Lube and the owner of the road (the government) for assisting me in the getaway. You don't sue Walmart for selling me the duffel bag that I stuffed the cash into.


    ---
  • Don't believe everything you read.

    TOS are an attempt to push liability as far away as possible. It's just like the things you get that say "this supersedes all other warranties, express or implicit". Actually, it *DOESN'T*. If the law says you get a certain minimal guarantee, you always get it, no matter what anyone says, no matter what you signed.

    Imagine that you hire a hit man, and he requires you to sign a document saying he disclaims all liability or responsibility, and acknowledging that his actions are solely your responsibility. Do you think this will get him off the hook?

    You can't assume that, just because something was written, it's legally effective.
  • Just because Yahoo isn't monitoring it doesn't mean they're not liable. That's why I talked about what happens when you actually TELL Yahoo what's going on, and they still don't do anything about it. For example, if I tell you that there's a guy selling cocaine on your front lawn, and you don't do anything about it, then you're an accomplice. (Especially if I turn around and call the police.)
  • Back in the pre-WWW days, a large BBS got into trouble for being a haven for pirated software. The BBS operators argued that they didn't have enough time to screen all their material to determine whether it was pirated, but that argument didn't fly because the BBS was a lucrative, full-time operation, and while they claimed not to have enough resources to determine if a file labeled 'MS Office Disk 1 of 42' was warez, they never failed to stuff their BBS ads into every .zip comment and plaster their logo on every .gif that passed through their system.

    Today, Yahoo has $billions at their disposal that BBS operators of the 80's would never have dreamed of, and they certainly make sure that every Geocities web page displays their ad banners. Is it too much to expect them to exercise a reasonable amount of care to prevent obvious illegal activity?

  • The reason Yahoo can profit from this is because of their business plan. Like most web companies out there, a large part of their income comes from banner ads, thus when people are browsing the illegal auctions yahoo is racking up the banner ad views and consequently making money off of it.
  • I got this nice little device called a v64jr [bung.com.hk] to allow me to write code for the N64 (I intended to port linux to it but it hasn't happened yet). It can also be used to pirate games. Nintendo recently sued Bung and won.

    Bung has officially stopped selling these things [bung.com.hk] because of a lawsuit and there web site looks like its been hit with an injunction.

    The solution to this legal crap is for those of us who bought the v64jr to develop code should sue Nintendo in our own class action suit. These big companies lawyers are good at being offensive against the little guy but are clueless about going on the defensive side agasint lots of little guys. The result is the company legal team gets in arguments with the hotshot hired guns and the results that I've personally seen are entertaining.

    For details about coding for the N64 see Dextrose.com assuming it comes back up.
  • Could some one please explain? Are they sueing Yahoo! for some direct sales action (done by Yahoo!) or are they suing Yahoo! for linking to someone else who are selling the products in question?
  • This article defines trivial, who cares if one business has a gripe with another. The solution doesn't lie with your typical content monitoring vs. liability bullshit that slashdotters love to sling.

    The problem is where is our free unmonitored auction website so we can sell what we damn well please without yahoo or ebay dipping its greedy little fingers into our profits? Some brave soul should host this and let the official legal authorities decide whats illegal and what isn't, not by pulling ads but by gathering evidence and going after lawbreakers. But instead we see corporations abusing their powers of contract for profit and censorship (eBay) and expecting the good folks at yahoo to do the same.

    What ever happened to personal responsibility and the law? Go after piraters not providers of public auctions. This legal action makes about as much sense as the waging the 'war' on drugs on lowbie street dealers while ignoring the source of incoming contraband.

    In the end, we all know how ludicrous it is to try stop the copying of music/games as well as the sell of illegal drugs. Law enforcement knows this and doesn't go after every pennyante pirate, but big business thinks they should play net-cop and pulls bs like this every so often. Give it up, or come up with a algorithm that a 10-year old can't crack.

    While I'm at it, where's the refund for the 'pirate' tax on the media I buy? We know they're making a profit.

  • I wonder whether these companies are doing this for the publicity (all P is good P and all that) in the wake of all the PSX2 publicity recently. Afterall, for copyright infingement, surely criminal procedures, involving some sort of law enforcement agency would be more appropriate than suing.

    Doing it this way, gets them on all the news sites [Slashdot included, oddly ;)], and those sites carrying it, could well be playing right into their hands.

    I'm not saying that Yahoo! are innocent in this, that really is for the courts to determine, what I am saying is that this is not the most appropriate means to pursue an issue like this.

    --
  • My point is they shouldn't be liable unless they are specifically catering to illegal auctions, which they aren't.

    These companies obviously have noticed the people selling pirated versions of their wares, why aren't they stopping the people commiting the crime instead of shrugging off their own responsibility? After this story was posted, I found a few of the auctions in question, and they all seem to hide behind a part of the copyright law that allows backups of media. It's pretty clear they're simply using the law to their advantage, but I would think if Nintendo really wants to stop this theft, they should sue the people doing it. If it's proven in court that what they're doing is illegal, it will very quickly put an end to the rest of the people doing the same.

    Really, Yahoo is doing nothing illegal here, they're just providing a service that is used primarily for legitimate purposes. This is what scares me, it sets a dangerous precedent.

  • Do we think auction sites should be liable for their content? Is this like ISPs being liable for what users download or read? I don't think so. "Real" auction sites have sets of laws that they must follow (e.g. Sotheby's couldn't auction a stolen 1957 Jaguar, or a counterfeit Picasso as a real Picasso). This may seem an extreme example, but the idea behind it is the same. While the freedom of the internet is important, that shouldn't mean absolute lawlessnes, ESPECIALLY if a company resides in the US. Just because they are online does not nake them some higher entity that can do no evil. -Marc
  • No no no not my point at all, I simply meant that non-US companies can't be held to our laws in situation X. There is simply nothing we can do about a company selling bootleg items out of for in most cases, they may not have the same copyright/trademark laws. You seem to be implying that if a company doesn't reside in the US they should be less constrained to obey laws. Insert the word "our" in between obey and laws. -marc

  • This is often difficult to prove in the real world (hence the reason pawn brokers exist). However if they can prove that they have regularly informed Yahoo! of prirated material, and Yahoo! has still gone ahead and sold it, then Yahoo! has knowly profited from the sale of illegal goods.

    Perhaps for the case of a pawn brokers, but in this situation E-mail records can show exactly what was sent to whom, and when it was sent. Look at the Microsoft case for an obvious example of this.

  • While the freedom of the internet is important, that shouldn't mean absolute lawlessnes, ESPECIALLY if a company resides in the US.

    What does that mean? You seem to be implying that if a company doesn't reside in the US they should be less constrained to obey laws. Or conversely, that non-US companies are more likely to break the law than US companies. Are you being a bigot, or did you mean something else entirely?

  • It also says just after:

    You agree to not use the Service to:

    ... upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party

    I think it's justified in saying this covers posting pirated software.

  • Correct me if I'm wrong but, aren't there many precedents that have said that content providers such as Yahoo, AOL, whatever, CANNOT be held responsible for content posted to their website as long as they aren't monitoring for it and take a laissez faire hands off approach. The second they start monitoring their stuff for illegal/whatever they become liable for what they miss.

    The game companies claim that Yahoo directly profits from the sale of bootleg games sold on their auctions. If that were the case, their role would be much more like a bookstore or a computer store than a neutral content carrier, and it would be reasonable to require that they police their auction boards.

    However, I just looked through Yahoo's auction policies, and it seems that they do not charge any auctions fees nor get a cut from the transaction, so the game companies suing Yahoo are on much shakier ground. (Ebay on the other hand does get a cut from the transaction, so they do have to police their boards).

  • Yes, same with E-bay, but if I remember they did get into the buisness of removing some heavy weaponry and drug sales, among other things. I suppose you might say this was "just too illegal", but can you make that distinction?

    In the last couple cities I've lived in, there's been a free "culture" magazine paid for by nothing more than ads and classifieds. A paper equivalent of Yahoo's auction, sorta. I can't ever think of seeing an ad for illegal anything in there, and I bet that's probably not coicidence, I'm sure they simply don't accept them because there's liability in it for them.

    And you bring up another interesting point - that Yahoo is primarily used legitimately. What if their service was primarily being used for illegal purposes -- say something like, Napster?

    Tough issues. My two cents is that certainly Yahoo should be active about removing anything called to their attention, at minimum. Beyond that it is a tough call. As far as suing the actual pirates stopping piracy -- no more than all the millions in jail quickly stop others from repeating the same crimes. Some crimes, like piracy, underage drinking, pot smoking, etc, are simply so rampant they are impossible to effectively enforce. And making an example of the big fish, or a couple random smaller fish, doesn't do much to dissuade the masses.

  • I have 67,000 copies of MS Windows 2000 for sale. They are a little gold-looking, but they work fine!!
  • > it also devotes a chunk of text cautioning the potential buyer that it's only legal to use the copy if they already own the game

    This is a cdr copy of the game. In order to purchase this game, you must comply with Law section 117 which states you already own the original, and just want a backup copy for it.

    If your a big fan of the Final Fantasy series, then this is a must have for all you of, it just wouldnt be the same if you didnt have it in your collection.

    Hold on a second. The person selling the game starts by saying that it's for backups only and that you must own the game already. Then, 5 sentences later, he's goes into why you should buy it and why if you don't have it, you must add it to your collection. Sorry, I think that shows he doesn't have a clue that putting up a legal disclaimer before breaking the law doesn't work.

    kwsNI

  • Extracted from Yahoo! Auctions guidelines...

    Ownership of Data
    When participating in Yahoo! Auctions you may provide us with information about yourself and/or products and services listed. You grant Yahoo exclusive rights in all of this information, and all information derived or generated from it, in all existing or future media. These rights include but are not limited to the right to display your information anywhere on Yahoo's services and media properties, to search the information, and, consistent with our privacy policy, to repackage and resell it to anyone for any reason. As used in this paragraph, information includes but is not limited to data, text, photographs, drawings, sound recordings, feedback, and any other information or data displayed or presented in connection with your listings and bids on Yahoo.
  • IANAL, but it would seem that what Yahoo needs to do is

    Open a branch office in Taiwan

    House their servers there

    Publish that all auctions are subject to the laws of Taiwan

    Better still - do it in Malta. They may need to build the telecom infrastructure from scratch, but an invasion and censorship from the mainland Chinese is less of a threat.

  • Basically if I knowingly act as a broker for illegal, stolen or forged goods then I am breaking the law.

    Nintendo of America Inc.'s general counsel, Richard Flamm, said in a press release today that his organization has advised Yahoo! "many times" of the easily identifiable counterfeit goods...

    This is often difficult to prove in the real world (hence the reason pawn brokers exist). However if they can prove that they have regularly informed Yahoo! of prirated material, and Yahoo! has still gone ahead and sold it, then Yahoo! has knowly profited from the sale of illegal goods.

    I don't like Yahoo!'s chances. Getting them to change there site or the way that they post goods for sale is a completly different question.
  • Actually, from what the article said, it seems like they alerted Yahoo to the sale of illegal and infringing items and Yahoo did nothing about them. The article implies this happened many times, not just once or twice.

    The companies see how easy it is for eBay to stop these types of auctions and won't stand for Yahoo just ignoring them. And eBay does... A friend of mine was selling Rare CDs, still in the shrink wrap, with cd-rs of the same cds (so that you wouldn't have to open the shrink wrap) and they cancelled his auctions, even though he was selling the cd-r with the original cd. So eBay manages to keep on top of illegal auctions pretty well and the game companies expect Yahoo to the same.

    There really is no confusion here- the companies are well within their rights to try and put a stop to this. I mean, I don't really think they care that much about the high school kids who copy each other's games (not to mention those sort of "pirates" are impossible to catch), but if you are copying someone else's work and selling it... That's just wrong.

    josh sisk
  • There's a case that might apply...new york courts, so it's not a binding precedent unless the case was filed in NY, but it's something...under cubby v. compuserve, it was established that if a company has previously exercised no editorial control over internet content, it's not liable for it (as far as I read it, I could be wrong). Therefore Yahoo! has the defense that, even though it's making money off of the service, it's not liable for content because it exercises and claims to exercise no editorial control.

    On the other hand, there's probably a negligence issue at stake. (I'm too lazy to look up the code sections, sorry) If Yahoo was reasonably informed by other parties (In this case, NOA, at least) that illegal transactions were occurring in a space that Yahoo! provided, Yahoo! is (I think) required, even under common carrier status, to go shut it down. If they don't, it's a case of willful negligence, and I'm pretty sure they're liable for it. While some people have pointed out that Yahoo! doesn't claim to screen for content, and state that they're not responsible, the fact that Yahoo! provides the forum for auctions/trading means (I think) that if there's illegal activity, and they know about it, they're required to do something about it.

    Hope this isn't too far from reality--lawyers?

  • (Just to wear my bias on my sleeve, I'm a game developer who has been in the biz for about 7 years now).

    The meatspace analogy would exactly be the persons responsible for maintaining order in the space of the auction -- the city government, police, etc. You can be certain that if there were a public auction of illegal goods, and someone notified the cops of this but their response was "sorry, we're not responsible", heads would roll.

    As someone who makes games for a living, I think that this is an important issue that has to be responded to. While there will always be outlets for pirates to traffic in their illegal goods, aiding and abetting such practices, especially under the guise of electronic freedom, is just encouraging amoral behavior.

    One interesting, somewhat related anecdote from longer ago in the games industry: when Ultima Underworld came out for the PC, it had no copy protection. It sold reasonably well, especially for the time. However, it sold around (IIRC) about 1.3 times as many hint books as copies of the game! Somehow, I doubt people were just buying extra copies of the hintbook.

    The fact is that we are at a point in the cycle of copying technology such that casual piracy is a big threat to the livelihood of the software developers. As a society, we have to do everything that we can to work against people just looking to steal others' work, lest we lower the quality of generated work overall.

  • Re:Why Yahoo is liable (Score:3)

    by Anonymous Coward on Wednesday March 29, 2000 @01:39AM (#1163793)
    Yahoo doesn't do any proactive checking whatsoever. You can inform Yahoo that auction #123 is an illegal bootleg CD, and they don't stop it. Most of the time, they don't even acknowledge you. They never penalize you, and they certainly never cancel your account - he's been using the same one since auctions.yahoo.com got started.

    But that's the whole point!!

    Correct me if I'm wrong but, aren't there many precedents that have said that content providers such as Yahoo, AOL, whatever, CANNOT be held responsible for content posted to their website as long as they aren't monitoring for it and take a laissez faire hands off approach. The second they start monitoring their stuff for illegal/whatever they become liable for what they miss.

    Wasn't there a case w.r.t. AOL in a similar manner? AOL couldn't censor unless they wanted to be held responsible for not censoring everything?...what was the deal there?

  • What about Nintendo, who put out stuff on cartridge?

    You can get a device that plugs into the cartridge port of an N64 and connects to the parallel port on your pc. You then use the pc to store rom images and send them to the N64 depending on the game you want to play. Easy copying as the images are small........

    Troc

    PS Not trying to promote piracy or anything, I just happen to know that :)

  • The CDA May Protect Yahoo (Score:3)

    by FreeUser ( 11483 ) on Wednesday March 29, 2000 @04:23AM (#1163795)
    i cant see it being too hard to flag messages that contain certain words (warez, backup, cdr etc) for manual inspection, provide a `complain about this item` option, etc...

    Unfortunately, according to portions of the CDA which were not overturned by the supreme court AFAIK, once a content providor starts excersizing editorial control of any content, they become liable for all content on their site, regardless of whoever posted. By doing absolutely nothing, Yahoo may well have protected themselves legally, despite what this lawsuit purports. Certainly in terms of criminal law this appears to be the case.

    Of course, the civil courts could go the other way, putting all ISPs and content providors in the ugly position of being vulnerable criminally if they do excersize editorial control, and being liable civilly if they do not. Given the vagaries of our so-called justice system, this kind of absurd result would not suprise me one bit.

  • So what do Sega/Nintendo have to do with this? (Score:3)

    by stx23 ( 14942 ) on Wednesday March 29, 2000 @01:29AM (#1163796) Homepage Journal
    EA, I can understand why they might be pissed. Their items could be copied to CD-R, from PSX/PC format.
    What about Nintendo, who put out stuff on cartridge?
    Are we talking pirate cartridges here? Same for Sega, IIRC, Dreamcast games can be pirated, but it's gonna cost 10G for the hardware to do it, so it kind of puts off the casual pirate.
    Is this about piracy, or are Nintendo/Sega getting heavy with people reselling their cartridges, as I seem to think they were threatening something similar in Japan.

  • I hope Yahoo wins ... (Score:3)

    by HalJohnson ( 86701 ) on Wednesday March 29, 2000 @01:41AM (#1163797) Homepage
    For the simple fact that if they lose, it will severely impact the concept of content neutrality. Of course they know what's going on in these auctions, but as soon as they start stopping some, they open themselves up to having to stop ANY that might possibly be a problem. If they only control some types, then they're wide open to lawsuits with some type of backing.

    Worse though, it how that would affect smaller companies that want to allow high levels of interactivity, but don't have the resources to police that activity. With a meatspace analogy, who would be Yahoo? Say if people liked to sell these game copies on street corners in a particular town, would Nintendo be suing the town?

    As far as I'm concerned, this isn't Yahoo's responcibility. It would be different if they specifically catered to people selling illegal items.

    Nintendo & others need to bite the bullet and attack the real culprits if they want something done about all the petty pirates. But that would drain their resources, so instead they try to drain Yahoo's resources.

    It's actually rather sickening if you think about it.

  • I think the really interesting point here is what precedent this will set for online auctions?

    Assuming that Nintendo et al. win, it'll set a precedent such that online auctions are liable for everything they auction - not that that's a bad thing IMHO but it would require vetting of every item that's put up for auction in the future. Somewhat time consuming and a bit annoying in this digital age :)

    It would als mean an end to exciting auctions such as body parts, Carol Vordeman etc......

    Do we think auction sites should be liable for their content? Is this like ISPs being liable for what users download or read?

    Troc

  • I believe you're referring to the CDA, (Score:4)

    by FallLine ( 12211 ) on Wednesday March 29, 2000 @04:26AM (#1163799)
    and this only protects them from liability in libel cases. Although the bulk of the original CDA was struck down on Constitutional grounds, those parts remained. Expecting service providers to monitor speech would have a chilling effect on free speech, because it is an impossible demand, and would force ISPs to walk a very fine line. In other words, ISPs are essentially granted strong immunity from libel suits, so long as they don't play an active role in promoting or creating it. The issue with censoring comes into play, in that by doing any censoring they expose themselves to liability in that they're providing some assurances as to the information provided.

    Contrast this with Yahoo being informed in a provable manner by the owner of the intellectual property that it is, in fact, pirated. They're entirely different. Nor do I think it is an unreasonable demand that Yahoo does some auditing of their auctions, there are precedents for this.

  • Yahoo's Terms of Service (Score:4)

    by spiralx ( 97066 ) on Wednesday March 29, 2000 @01:26AM (#1163800)

    You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Yahoo, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Service. Yahoo does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. ... Under no circumstances will Yahoo be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service.

    Since they have this is in their terms of service, surely the person who posts the stuff that they are suing for are liable for it rather than Yahoo?

  • Yahoo! MAY BE responsible (Score:4)

    by alexhmit01 ( 104757 ) on Wednesday March 29, 2000 @01:26AM (#1163801)
    When Slashdot has a public forum which they make clear that they do not prohibit or censor anything, there is protection. In Yahoo!'s case, they appear to be involved in the transaction if they take a cut, like E-bay does. If memory serves, Yahoo!'s auction site is a free service, in which case, it may have common carrier status.

    However, if they are notified of illegal activity, they may have an obligation to take it down. I think that the DMCA may include such provisions, but I am not certain. Much like an ISP has to take down a web site if they are notified of criminal activity, Yahoo! no doubt has to take down an auction when notified of criminal activity.

    My question is, are they demanding that Yahoo! proactively intercept illegal commerce, or only that Yahoo! remove it when notified. Additionally, how to they know that it is illegal? I mean, "this is a cdr copy" implies that it is illegal, but "this is a legitamet copy" could be a lie and it could be an illegal copy. I wonder if this will include fraudulent sales masquerading as legal ones or merely the advertised illegal sales?

  • What an auction is : (Score:4)

    by DrSkwid ( 118965 ) on Wednesday March 29, 2000 @01:49AM (#1163802) Journal
    IANAL
    In the UK an auction is partly a clearing house for possibly stolen goods that third parties have acquired not knowing if they were stolen or not.
    The auctioneer needs to publicly state that there will be an auction in a fixed place, at a fixed time.
    It is then your responsibility, if you have had items stolen, to attend the auction to see if any of your goods are on sale. If there are you can have them back (not sure what the burden of proof is). If they are sold then the person buying them is secure in the knowledge that you cannot go to their house and say "hey that's mine - I'm having it back".
    It's a system that dates back to long ago when I suppose everybody in the neighbourhood would attend and get their stolen turnip back.
    In that case it's not a concern of the auction house if things are stolen.

    However someone who duplicates CD's is breaking copyright not stealing. There are laws to prevent counterfeiting which auctioneering is not protected from.
    One thing that does puzzle me though is why the game companies are involved at all. In the UK cases concerning counterfeiting are generally the handled by a joint operation between the police and the local trading standards office (a local govt. body). In this way the injured parties are abstracted from the process.
    It is supposed that the purchaser is also a victim rather than a criminal. If I buy copied products I have been swindled out of my belief that I was buying an original. The buyer is expected to act with due dilligence (no Gucci suits for $30) but I'm not sure of the penalty for not being 'dilligent'.

    That does leave me with one question though. When I go to Spain and buy my Game128 and put in my Gameboy it doesn't present me with any license agreement. The packaging looks professional and of the 128 games in the cartridge I have only seen the names of a couple of them before. Am I free to go ahead without fear of penalty believing it to be a legitimately licensed product?

    .oO0Oo.

  • ToS and third parties (Score:4)

    by KahunaBurger ( 123991 ) on Wednesday March 29, 2000 @02:44AM (#1163803)
    Since they have this is in their terms of service, surely the person who posts the stuff that they are suing for are liable for it rather than Yahoo?

    Surely not. The people sueing them never agreed to these terms. If the suit was by some buyers who had gotten ripped off, the ToS would matter. But a judge and/or jury is going to decide whether Yahoo has a responsibility to prevent trafficing in illegal goods over their site. They can't avoid the law by saying "oh but we said we weren't responsible, so we're not!"

    To put it in other terms, if Bill Gates had included a little line in all his exclusivity and bundling contracts stating "this contract does not represent an attempt at a monopoly and is not meant to infringe on any third party's attempts at compitition" Do you think the DOJ would give a flying you know what with a rabid weasel?

    Terms of service establish the relationship between the two or more parties that can read and agree to them. They mean diddly squat when an effected third party challenges the legality of one or more parties actions.

    If anything, I would think that these ToS will work against Yahoo, since they seem to let buyers and sellers know that Yahoo won't be interfering with illegal sales, even if they have knowlege of them. Exactly what the plaintifs are charging.

    IANAL, IMHO etc.

    -Kahuna Burger

  • Why Yahoo is liable (Score:5)

    by Brento ( 26177 ) <brentoNO@SPAMbrentozar.com> on Wednesday March 29, 2000 @01:25AM (#1163804) Homepage
    I used to be roommates with a guy who sold bootleg concert CD's for a living. Ebay has a few employees that proactively search for illegal items like bootlegs, and they're so effective that the guy could only put bootlegs up for auction on the weekend, when the staff wasn't working. When a staff member finds you selling bootlegs, they can (and do) cancel all of your current auctions - not just the one auction they found.

    In addition, Ebay lets you e-mail these "policemen" and tell them about illegal items, and they'll take action.

    Yahoo doesn't do any proactive checking whatsoever. You can inform Yahoo that auction #123 is an illegal bootleg CD, and they don't stop it. Most of the time, they don't even acknowledge you. They never penalize you, and they certainly never cancel your account - he's been using the same one since auctions.yahoo.com got started.

    I can see why Yahoo is doing it - they're trying to capture market share in any way possible, and let's face it, if they offer cool stuff that Ebay won't allow, then people will get interested. If you browse through Yahoo's auctions, you can find pretty much any bootleg on the planet, and a decent selection of pirated software.

    Yahoo is getting hit up by these guys because they (Yahoo) are totally irresponsible about the legality of what they're allowing their users to auction off. Somebody could probably put slaves up there and sell them. Come to think of it...

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