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23-Jun-2007
EBay has changed their User Agreement (UA), expanding without limit the license they claim to use the Seller's work ("content"). The agreement seems to assign to EBay far more rights to the seller's work than are needed to promote the seller's items. This topic has been probed in several EBay forums. There isn't a consensus among sellers about what this means, or if its important, or what the law is, or what to do about it. The change takes effect July 9 for sellers registered before May 16.
The consequences are severe for merchants offering original creative content, like art or books. There is also danger for those whose images or descriptive content or data are reusable, whether on EBay or in other venues. Unless taking unusual legal precautions, sellers are advised to remove such listings from EBay. Other merchants may decide to reduce or limit the quality of content uploaded to EBay.
This article reviews the new content license and its implications for sellers. It suggests who might be concerned about it, and suggests steps they can take to improve their fate.
This is a lengthy article. Its a serious matter and your intellectual property is at stake. If you aren't used to think about your writing and photo's as "property" perhaps the examples will help you.
Disclaimer: This is a matter of contract law and copyright license law. The law is not simple. These matters are best examined by an attorney. As far as I know, no attorney has weighed in within the forums. I am not an attorney, and cannot offer legal advice. Its up to each seller to seek professional advise and make their own decisions about how to protect themselves.
Let's start by looking at the new contract clause, to see how it changed, and consider what it now means.
The new clause says
"When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future."
The old clause said
"When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future. (We need these rights to host and display your content.)"
The change is the removal of the final parenthetical expression: "(We need these rights to host and display your content.)".
Scott Shipman, an attorney who represents EBay, wrote that this phrase was removed because it "confused" some people and "to clarify that [eBay] may broadly use [...] user content, to enhance and improve our business ...". In the same letter, Shipman said "We did not change the content license. " And then he said they did: "we removed the language ...". Then he said "In fact, the content license has not changed materially since it was originally drafted in 1998." The key phrase has been there since 1999 or earlier.
Shipman suggests that nothing important has changed and that you shouldn't worry about this. Bear in mind what Shipman does for a living and who he works for, and the results he's paid to obtain.
Let's look step by step.
Absolutely. Ten words were deleted.
Certainly. Sometimes the meaning of an important legal clause can hinge on a single word, and changing or adding or removing a word can change the meaning profoundly.
Yes, and easily so. If a clause gives you rights, and the clause is removed, you lose your rights. If your contract with a savings bank has a clause that says you are to be paid interest, and the clause is removed, there goes your interest income.
Probably. Ask a lawyer. Those 10 words explained how EBay intended to use your copyright. That purpose was narrow, and strictly for your benefit. Its arguable that those words limited Ebay's use of your copyright to that purpose only and not for some broader purpose. By removing the words, the limitation is removed, and now EBay hopes to use your property for anything they want, even against your interests, and without compensation.
No. Being on the wrong end of a bad deal yesterday does not make the deal a good one today.
I think the 10 words protected your rights, and EBay removed them now because they want to put your rights clearly into their pocket.
Let's look at what the new content License appears to do.
Some people, including myself, have written that EBay would "co-own" the copyright in a seller's work which he has given to EBay as content. That is incorrect. If this contract is valid, then the seller would still have sole ownership of his content copyrights, and EBay would own a license to all rights in those copyrights. The distinction may seem subtle. Without owning the copyright itself, EBay would enjoy essentially all of the rights to it. While the owner can write additional non-exclusive licenses, so EBay may write sub-licenses. EBay can use your work for any purpose or sell copies of it without asking your permission or paying you.
Your copyrighted work does not fall into the public domain simply because you publish it on EBay or even if EBay claims a license to it. If anyone takes your work without permission, you still have the right to go after infringers.
Because EBay will have the right to sublicense, they may give anyone else permission to use your work. So when you think someone may be infringing on your copyright, you should first determine if they acquired permission through EBay.
Possibly EBay will have the right to go after infringers of your work without coordinating with you. That's an unanswered legal question. If they do have an enforcement right, its not clear if Ebay must share the income or damages with you.
The forums wonder how EBay will use the expanded rights (copyright, database rights, and your publicity rights). Its a matter speculation. EBay isn't saying, and brains often storm after a new frontier opens.
Some forum contributors have suggested that EBay will not use the rights for any purpose other than to promote your listings or to promote the EBay site. They argue that if the license is overbroad, EBay won't exploit that. I anticipate that EBay, faced with a treasure house of exploitable data, will think of something to do.
Another forum contributor notes that US law requires, or did in the past, that copyrights be licensed by a signed writing, and suggests the possibility that digital signatures are insufficient. In other words, EBay could be bluffing or ignorant of the law. Without legal advise, the rest of us are ignorant of the law too. Either find out, or protect yourself some other way.
It is essential to know what is included in the term "content" as the EBay license refers to. The UA does not define "content", although it uses the word a few times. Perhaps "content" has come to be defined in case law. More likely, the meaning must be puzzled out of the context of our commercial dealings with EBay under the supervision of a judge.
EBay's Community Content Policy refers to Reviews, Guides, Blog Entries, EBay Wiki Articles, and Member-Created Product Descriptions, and it references "content" submitted to Discussion and Chat boards and Groups. "Member-Created Product Descriptions" are cooperateively constructed item descriptions posted for community use, rather the typical description of an typical EBay listing.
The EBay help page Editing Content You Create on eBay refers to editing "content" for About Me, Wiki pages, and blogs.
Help pages also refer to "content" of custom store pages.
This is suggestive but not definitive. If the contract does not define this term, and its meaning isn't obvious, then the meaning may be legally ambiguous. That means the meaning is up in the air until a judge decides. Does "content" mean only the information named in the Community Content Policy? Does it include or exclude listing descriptions and EBay hosted photos?
To be on the safe side, you should consider that EBay will regard at least these categories to be "content":
My opinion, or hope, is that "content" excludes off-EBay material referenced by link. That is, I am hopeful that self-hosted photos linked from my listing descriptions are not considered "content", and that the entire MicroMerchant Gazette website is not roped in by virtue of my mention of it in an EBay forum.
EBay is asserting the right to use all copyright rights possessed by the content "giver", unlimited by time or place or medium or purpose, and without royalty. As one poster put it, that's "all rights".
An open question is "Does the license grant EBay the right to 'derive' from the copyrighted work?"
Note that you cannot convey rights you do not possess. If you are not the copyright owner, and your license to use material on EBay is a license to you personally and without the right of sublicense, then EBay cannot obtain license from you. For example if your brother made the picture that you post on EBay, EBay can't obtain any rights to it, since your brother owns them all.
Let's consider some general implications of copyright that might apply.
You can own something but not control it. You could own your house, but if you have granted 20 in-laws the right to live there forever, you don't control your space. And you won't enjoy your house.
Consider books as examples of copyrighted material. When you first write a book, you own every exploitation right imaginable, plus rights to all of the exploitations that mankind hasn't invented yet. Copyright is a basket of separable rights, and those rights may be licensed together or separately. (E.g. the right to publish a book in North America vs the right to publish it in the UK vs the right to make a radio play vs the movie rights vs audio tape vs CD and so forth.)
When you shop your book to publishers, they will ask if your rights are intact, or if you have compromised them by publishing. They want, and need, "all rights" and "exclusively". You will be compensated for each of the "all rights" as they are exploited, and the exclusivity will help the publisher exploit them. If you can't offer exclusive rights, they will probably say "no thanks".
Imagine you were the young Walt Disney and your company made a movie called Fantasia which you expected to make some money from. Suppose you (Walt) granted to Jack Warner the same non-exclusive rights to Fantasia that EBay now asserts in member content. Indeed you would have still owned the copyright. And you could still have licensed movie theaters to exhibit it. But at that moment you would have lost control of Fantasia and severely damaged its profit potential.
The damage is that the Warner Brothers would have obtained the right to screen the movies all over the world and keep the profits. Every time Walt put Fantasia into a theater, Jack could sell tickets across the street for less. Or Jack might go to those same theater owners and offer to rent the film for 75% less. When Walt runs a global advertising campaign for Fantasia, Warner Brothers (and now AOL Time Warner) will be out there selling Fantasia merchandise through Burger Hut, leeching off of Disney's advertising. When DVD's came along, the market would be flooded with Jack's cheap but legal copies.
While Walt would still own the copyright, he would no longer control his asset.
When a book publisher, or any publisher for that mater, needs exclusivity, it is to make sure that as they as they split out each licensing right, the do so carefully to avoid the problems of the Fantasia example, making sure the potential income streams aren't compromised.
Under EBay's content license, the copyright owner loses control.
The potential value of your work is usually bigger than you imagine.
Copyrights last a long time, for 70 years beyond the lifetime of the author. Think about all of the ways of publishing that were invented in the past 100 years. Radio. Television. Tape recordings. TV. HDTV. Movie Videos. Ring Tones. iPhones. Use of music and content for advertising. Now think about the times something retro became cool again for a new round of income, or of works that become popular only decades after introduction.
The potential is unfathomable. Why cripple it or sign it away for nothing?
Lets look at examples of the kinds of listings and other content that may not be properly protected with the new content license.
Not all content will have present value or latent value. But unless you have worked in a field where copyright is important, you may be unaware of how works can have unexpected value. The contributors to the Art & Artist's forum understand this. The examples are not exhaustive, and they may give you ideas about how other works can have value.
Artwork may be copyrighted. Images of the original art are themselves derived works and subject to copyright. Art has this interesting fluidity, of being expressed in different media while reaching back to and resonating with the original piece. Derivative images of art sell the original art and the original helps sell the derivatives.
One piece of art can be mulitiplied into new works of art by expressing them in different media. An oil painting in color may be repainted in a monochrome, as Norman Rockwell did when fulfilling commissions for magazines when color printing was expensive. Or the oil painting may be reexecuted as a lithograph or as an engraving for limited reproduction. Presently, high quality digital scans and digital prints are possible and marketable.
Its a mistake to assume the early work of an as yet unrcognized artist will never attain value. Artists have a career, which develops, along with their artwork, and along with their recognition and popularity. Often their early works remain less well known until after the artist achieves fame. And then the early work, along with the rest of the catalog, becomes fantastically valuable. Alas, sometimes artists die before their works become becoming popular and their heirs live well.
An established artist often becomes sophisticated in marketing and the protection of his rights. With popularity comes the income that is helpfully spent on protecting the future income stream. The budding artist doesn't have it so well. They often lack the income for proper advice and the income necessary to entice a useful agent. And the budding artist doesn't have access to as many channels for distributing their work. Such artists may turn to street fairs or to the Internet to display and sell their work until things start to hum.
EBay provides some advantages as a sales channel for the budding artist. It a place where a clear photo can be presented and advertised, and a purchase and payment coordinated. Access to the EBay channel now comes at a disturbing price. EBay takes an unlimited license to the artist's copyright in the uploaded image, his biography, and description of the piece. EBay is free to duplicate each, even if doing so compromises the artist's ability to further market his work.
Blessed is the artist who sells at street fairs, or on his own web site, because he reserves all rights.
One contributor reported that he has invested $150,000 building a unique database of certain items with information about those items. When he lists one of those items, he includes in the EBay description relevant details taken from his database. This presents better information for his customers, making it more likely that searching customers will find and understand his listing. His unique database gives him a competitive advantage.
His database, a "collection", is copyrighted. Under copyright law, he does not lose his rights as he publishes, one item at a time, the content of the database.
Under the content license, EBay will acquire a license to his database. Either EBay can mine his listings for the entries, or his competitor can do the mining and go to EBay for a sublicense. This database owner stands to lose his competitive advantage and the benefit his $150,000 investment.
The same principle applies to anyone who offers a coordinated catalog of items, like appliance parts or car parts, or attributed collectibles.
Suppose that a merchant has a EBay store of searchable cataloged items, as above, with the addition that he has photographed them and posted a photo with each listing.
What EBay could now do is assemble a searchable catalog of photographs, and rent access to the photos to competitors of this merchant who did the work. EBay can offer, on the Sell Your Item page, "for 10 cents you can use the photos of your competitor's listing." Not only would the copyright owner not share in the fees paid to EBay, but the competitive advantage of his business is undermined.
Collectible coins are an example of classes of goods requiring high quality phots to sell them, and whose photos have value beyond the sale of the item. The value of a coin depends on its rarity and its condition of wear and abuse, or lack thereof. Each coin is unique. To get the best value for a coin, the buyer must either see it in person, or see clear, detailed and revealing photos of all its sides. Sometimes the photo reveeals a stiny minting peculiarity that indicates that the coin is of a rare and valuable variety, and not simply a commonplace example for the year. Photographing coins is a challenge of microphotography. They are small, generally reflective, with relief that casts shadows on other parts of the coin. Great photos will let the buyer know if he can bid top dollar. If the photo is fuszzy, the buyer must assume the worst and discount accordingly.
Because varieties are important, and possibly lucrative, collectors and dealers value high quality reference photos of varieties. Such photo collections are difficult to assemble not only because the photography is challenging, but because the items themselves are rare, perhaps unique, and hidden in bank vaults. The rights to such photo collections are valuable, and EBay plans to usurp those rights.
Like rare coins, other types of collectibles are documentable in comprehensive photo books identifying each the different varieties. Imagine the difficulty of producing a comprehensive catalog of Pez dispensers or of any other collectible. And imagine the usefulness and value of such a book.
Suppose you have written a book and published it in EBook form and you want to sell copies on EBay. Maybe you include a couple of the book's pages in your listing.
You would no longer have an exclusive right to those pages in any medium. If you later tried to publish elsewhere, you might possibly have to ask EBay to sell back to you the full rights to your book. Maybe this isn't a problem, but it takes a lawyer, and maybe a trial, to be certain.
Suppose you have assembled a collection of the 100 stupidest things said publicly by an American politician. While each quotation would not be subject to copyright, the collection of them would be. Now suppose you offer a product line of 100 birthday cards with each card having a different quotation from your collection. Wherever you offer the card, you will want to give the quotation. After all, that's the enticing bit about your product.
If you sequentially list your cards on EBay, EBay can assert a license to your collection of quotes and can publish them without compensating to you. Or they could license the entire business to someone who wants to compete with you.
You write a careful and useful guide about how to distinguish counterfeit PEZ dispensers from their real and rare counterparts. EBay can publish it elsewhere, perhaps in a compilation of related guides. You will receive no compensation for your work.
Suppose you sell a shirt and you modeled it on yourself for the photo you uploaded to EBay. There are many reasons why this is a bad idea, but let's suppose you do it anyway.
EBay obtains an unlimited license to the photo in addition to all of the "publicity rights". We haven't discussed publicity rights and what that means, and that's a murky area beyond the scope of this article.
The question is, might EBay be within their rights to publish your photo, identifying you by name? How else could they use your photo? If EBay was upset with you, could they also write "Look how fat this person is"? I don't know. Do you know enough to eliminate the risk?
A well known supermarket chain with a club card published information about a litigant's personal purchases to pressure him to drop his lawsuit. The nasty precedent is there.
Without the content license, EBay can't do any of this.
The main purpose of listing an item on EBay is to sell the item. If EBay uses the copyrights in my ads to distribute my ads widely and promptly, then I benefit. Its what we pay EBay to do.
The difficulty is that EBay wants to use, and encumber, the seller's property in ways that do not benefit the seller, or directly harm the seller.
Do you care or does this seem irrelevant to you?
You might not care about the encumbrance of your copyright for any of these reasons or others
Indeed, the content of many listings is of doubtful commercial value because they contain little detail or its poorly expressed, and the images are poor.
There are, however, some sellers who prepare and present material which may have lingering commercial value, and who take pride in their work and wish to control its distribution and wish to be compensated if it turns out they did something especially good.
You should be concerned if
Here are some things you can do to protect yourself. Some involve developing a clear view of the law and the legal defenses available to you. Others involve sidestepping areas where safety is uncertain.
You might hire an attorney to review the clause. If she firmly believes the copyright license is invalid, and knows how to prosecute, then prepare a war chest, watch for EBay's infringement of your work and sue them if they do. And in the mean time, include rich and useful content in your listings, guides and reviews.
Divide your activities into two parts, one of which owns the copyrights, and the other which posts the listings. For example, your own corporation could own the copyrights and you could personally post the listings. Or a husband could own the copyrights and the wife post the listings. The idea is that if the person or entity making the listing doesn't own a copyright in the content, he lacks the authority to issue a license to EBay. You need legal guidance about how to make this airtight.
Hold back good content, content with the best potential.
If your art is imagery, like photographs, paintings, serigraphs, etc, I don't think you can safely sell them on EBay. Period. To effectively promote such works, you must show engaging images of the art. If you do that on your own website, you retain absolute legal control. If you put them on EBay, you lose control, in ways we don't fully understand. Exclusivity is critically important to the exploitation of art over the century during which you and your heirs will have available to you. Abandoning exclusivity to EBay for a 10 cent listing is reckless.
If your artwork is three dimensional, it is copyrightable and photographs of it are derivative works which are also subject to copyright. Images of your work are essential to the promotion of it. Museums are very careful and proprietary about distributing the reprint rights to images of their work, and even to its advertising. You should be too.
You now face a difficult decision about whether you can safely risk publishing images of your work on EBay. Take it off of EBay if you are uncomfortable with the risk.
Self host all photos. The content you upload names a link to an image, not the content of the image. They might get a license to the content embedding the link, but hopefully not a license to the image itself.
EBay might argue that the jpg they shrink into a gallery thumbnail is licensed to them. So prepare an 64 x 48 pixel reduction and upload that for the gallery thumbnail. The worst that happens is that EBay takes a license to the thumbnail.
Watermark the thumbnail. You should be safe watermarking with your name or brand name or site name. One might also explore options like watermarking with "Google is Great!".
The "preview photo" is the 200 x 200 pixel photo placed at the upper left corner of many listings. If EBay hosts your photos, then they fit your #1 picture into that spot. When self hosting (which is what we need to do) EBay will place into that spot an IMG tag containing a link to your #1 image on your self hosting site. To guard against EBay claiming a license to this photo, do this: Prepare a 200 x 200 watermarked reduction of the image you want to insert here. Then include in your description an IMG tag referring to the blowup. Or eliminate the preview photo altogether, or replace it with a slogan.
Expect EBay to consider the guides and reviews you publish on EBay to be "content" and claim the copyright is licensed to them without compensation to you. Most publishers will not touch a work for which they cannot obtain exclusivity. If you do surrender exclusivity, you may be later restricted to self publishing to a reduced market.
Your options:
1. Remove your guides and reviews from EBay now, before July 9. Publish them on your own web page and link to them. If your guides have any merit to them at all, this is what I recommend so that you preserve your options. You can always give EBay a license later.
2. Leave them on EBay and expect to lose control. This may be appropriate for dashed off work without long term value.
3. Substitute summary guides which are, in essence advertising come-ons for higher quality guides published off of EBay.
The Reviews & Guides community understands this issue and some have been removing their publications from EBay in self defense.
This data is essential to your listings and you cannot protect it from EBay if you upload the pieces to them. The only option apparent is to remove from EBay all of your listings which usefully include this database info. Put them Elsewhere where your copyright is secure. The poor alternative is leave your items on EBay, minus the database information, making your listings less findable, and harming your business model.
Having the snippet somewhere online may help you sell books. If you include the snippet directly in the EBay listing, its not safe from EBay. Move it out of your EBay listing and onto a page on your own Elsewhere web site.
You cannot safely sell these sorts of items on EBay. Sell them Elsewhere.
If it was a bad idea before, its impossible now. Remove from EBay all pictures of yourself that you do not want to appear in tabloids bearing your name with derogatory remarks. Possibly someone can explain why its legally safe to leave them on EBay, and we would be delighted to hear the rationale. Until then, its a risk we can't accept.
Put your visible fingerprints all over your content. Again, watermark the images you expose to EBay - certainly the thumbnail, possibly the preview photo, and possibly your main images.
Consider adding a background image for your description which labels your site. Strike a balance between being inoffensive to your buyers, yet undesirable to EBay for re-publication purposes.
Explore invisible ways of marking your unlicensed content, especially images, so that if anyone does pirate them, you have some proof that its your content.
You bet and we all do! The original contract allowed them do that, "to host and display your content". But to serve up your listings in 2007, EBay does not require the additional power to sell in year 2010 a compiled catalog of mined images of your extensive collection of Pez dispensers. Once your listings have ended, EBay's further exploitation of your property does not help you.
Safe enough. How are sales?
Ok. Good luck.
I didn't draft the law or the contract. If you have a nifty legal countermeasure, please let us know.
So much the worse.
Its not simple. And the 3rd alternative to eating a peach whole, or going without, is to pry the stone from the fruit.
The copyright rights to your work are important. EBay is acquiring your rights not simply to promote your EBay store and listings, but to do as they please, for their profit, forever. Their unlimited license to your work can undermine your ability to exploit it.
This is a big deal, and everyone who puts content on EBay should think hard about how they are going to protect themselves.
EBay User Agreement (current, the one adopting the change)
These seven threads on six EBay discussion forums discuss this topic:
Art & Artist: Ebay will soon "co-own" your copyrights???!!!!!!! Trust & Safety: Did everyone see the new updated user agreement? Reviews & Guides: New User Agreement, how will it affect your Reviews & Guides? Seller Central: Ebay's TOS will declare that they own a seller's descriptions and pictures? PayPal: New user agreement updates for ebay, Wow Seller Central: Minimalist Listing Policies-User Agreement: Amended user agreement...
