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Following up on the last newsletter, which reviewed legal conflicts over trademarks as keywords for targeted ads and dealt with a trademark infringement case between Louis Vuitton and Google, today I want to introduce an interesting question about the responsibility of online auctioneers - eBay in particular - for stopping unauthorized sales of trademarked materials or of their knockoffs.
Readers may recall that the issue of responsibility of an online purveyor of information was the subject of two key rulings from the early days of networked computing:
* In Cubby vs. CompuServe, the plaintiff argued that the value-added network (VAN) CompuServe (a privately owned precursor of what we take for granted on the Internet today) was liable for libelous information posted in a "forum" (equivalent to today's blogs). The court ruled in essence that because CompuServe never asserted any authority over the contents of the privately run forums, it could not be held liable for the libel. In this sense, the VAN was treated as legally equivalent to a common carrier such as a phone company, or to distributors such as newsstand operators.
* In Stratton Oakmont vs. Prodigy, the plaintiffs sued a similar VAN, Prodigy Services. However, in this case, Prodigy made a specific claim of responsibility for the content of its "family-friendly" service. Failure to abide by its own standards made it liable for allowing defamatory postings to have persisted on its service.
EBay has always cooperated with any trademark holder which tells it to stop an auction that violates...