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Software Group Contemplates Suing eBay

The SIIA is frustrated with eBay because so much pirated software is sold on the site that the group can't identify all the offenders.

A software industry trade group said Friday it could sue eBay for failing to do enough to prevent the sale of pirated software on the online auction site.

The Software & Information Industry Association said eBay has refused to take several steps recommended by the group to help reduce sales of illegal software. Despite a few years of discussions, eBay refuses to do more than just take down auctions of software that the SIIA has identified as pirated.

"Once notified, they will do something," Keith Kuperschmid, senior VP of intellectual property policy and enforcement for SIIA, told InformationWeek. "What they won't do is what we consider pre-emptory, proactive measures."

Those measures include placing a notification in the buyer feedback section that the seller has had pirated items removed from the site; penalize sellers of illegal software, even if it's their first offense; and develop technology to try to find repeat offenders who use multiple identities on eBay.

The reason the SIIA wants eBay to do more is because so much pirated software is sold on the site that the group can't identify all the offenders, Kuperschmid said. The SIIA estimates that 75% of the software sold on eBay is illegal.

EBay's refusal to take these steps has led to SIIA discussions of taking eBay to court. The latest talks among members were in May. SIIA members include many big names in software, such as IBM and Oracle.

"It continues to be on the table," Kuperschmid said of suing eBay. "Does that mean we will be suing anytime soon? No. But it's definitely being discussed by SIIA and its members."

EBay said it is doing what it can to keep pirated software off the site, but is willing to continue talking with the SIIA and consider its proposals. "We feel that we're doing enough and that it's a global issue that isn't going away overnight," an eBay spokeswoman said.

The auction site is not new to such allegations. Jewelry company Tiffany sued eBay to force it to become more proactive in removing counterfeit goods. This month, a federal judge ruled the site is not responsible for fake goods sold on its site. That decision is expected to be appealed.

Kuperschmid said the Tiffany case is different, in that the jeweler claimed the counterfeits threatened to sully its brand, since buyers believed the inferior items were from Tiffany. The SIIA allegations involve laws related to copyright protection, not trademarks.

Nevertheless, the liability of Web sites that act as conduits to goods and services from consumers or businesses remains murky, because courts have yet to fully address the issue. One high-profile case still pending is entertainment conglomerate Viacom's lawsuit against YouTube. Viacom has filed a $1 billion copyright-infringement suit against the popular online video service and its parent, Google.

Meanwhile, the SIIA has been aggressively pursuing people it identifies as pirates. The group said it initiated the prosecution of Jeremiah Mondello of Oregon, who the SIIA identified as a major seller of illegal software. Montello was convicted of copyright infringement, mail fraud, and aggravated identity theft. A federal judge Wednesday sentenced him to four years in prison.

In addition, the group said it had filed six new lawsuits against sellers of illegal software on auction sites. The SIIA has filed a total of 32 such lawsuits this year.

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