The sweet smell of success

OUT-Law reports (inter alia) that perfume seller LVMH has won its action against eBay for allowing resales of its luxury prfume brands:

"Online auction site eBay has been fined £31.5 million and ordered to forbid the sale of some luxury perfumes in a French court order designed to battle the sale of counterfeit luxury goods.
Handbag, clothing and perfume company Louis Vuitton Moët Hennessy (LVMH) sued eBay in the French courts, claiming that the company did not do enough to combat the sale of counterfeits of its goods.

EBay claims that it cannot police all the sales through its site and that it makes no guarantee that goods are genuine, and that it suspends counterfeit auctions when notified of them.

The French court, though, found "serious faults" in eBay's processes [the VeRo procedure] that led to auctions of counterfeit goods going ahead. By allowing the sales, it said, eBay had damaged the reputation of luxury brands such as Louis Vuitton and Christian Dior.
EBay said that it would appeal the verdict."

As Pangloss has noted many times before, this is yet another strike against the once prevalent assumption that eBay would be a host under Art 14 of the EC E-Commerce Directive and thus not liable for content related infringements of the law where others were the authors. At the moment eBay are required to remove listings only upon actual notice; what Louis Vuitton, and Tiffany and all the rest want is for eBay to do the work of filtering out those listings in advance, by filters or however.

Combined with the "3 (1?) strikes and you're out - well, we told you so" campaign (see next) and the anti-child porn brigade, it has to be said that the ECD immunities of Art 13-15 - including the requirement that the state not ask ISPs or hosts to proactively monitor or filter in Art 15 - look increasingly like dead ducks.

Things look to be going the same way in the US as well, with both the CDA s 230c immunity under fire in the US Tiffany litigation, and DMCA immunity attacked in the ongoing Viacom v You Tube battle, which seems to have re awakened into violent life. Wow. Interesting times. This combination of factors is what Chris Marsden of Essex has insightfully been calling the "perfect storm" which is sooner rather than later going to overwhelm the 2000 consensus on immunity for online intermediaries, as well as net neutrality (plug - see chapter in upcoming 3rd edn Law and the Internet!).

Perhaps the debate should start to be not about what Art 14 means, but about what is to replace it when as expected proposals for reform of the ECD start to appear in the autumn. The content industries wil have all their arguments marshalled already: those of us who worry about freedom of expression, surveillance by DRM, loss of private data and promotion of innovation should start thinking about ours too. Judging by the Telecoms Framework Dirctive amedndments (see next), significant EU reform may arrive when we least expect it with little time for debate.