Fair use of eBay?

From: Bruce Rusk <brusk[_at_]stanford.edu>
Date: Mon, 13 Mar 2006 13:40:31 -0500

I have what seems to be a rather complex question about using material from an online source, specifically eBay. After some searching of the obvious online sources, there don't seem to be any easy answers, either about what would be permissible or about what a publisher would be comfortable printing.

Here's the situation: I'm writing an article, for eventual publication in a scholarly journal, about a type of antiquity of which a significant number are being offered on eBay. One part of the article will discuss the language used to describe the items as well as the images depicting them. One important aspect is how vendors plagiarize from one another and from other sources in the text of their descriptions. The article will also discuss certain features of the artifacts that have been considered "diagnostic" by collectors and would ideally include some images taken from the eBay listings.

Here are some of the parameters:

eBay's user agreement includes the following paragraphs:

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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.) [...] Additionally, you agree that you will not: ...
copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of eBay and the appropriate third party, as applicable;

---

The text I am interested in is housed on eBay's site, while the images are housed on other servers and linked to from the eBay listing pages.

The parties posting the items are mostly located in China.

The article will discuss in depth the language used to describe the artifacts (which, not incidentally, are modern reproductions being sold as antiquities), so it seems like fair use to quote passages verbatim, particularly when the purpose is to point out incidences of plagiarism. Would this situation be any different from quoting a published book or article, or an advertisement in a periodical? If so, would block-quoting an entire paragraph (perhaps 20% of the entire listing) be justified, if it's to demonstrate that it has been pilfered from elsewhere--and in that case, need I seek permission from the original source?(!)

The images might be more problematic. Each of the listings has about 10 images (photos of art objects), and I'd like to use at most two images or parts thereof from three or four listings. Would the reproduction of the images be considered substantially different from that of text? Does it matter that they're not hosted on eBay's servers?

If any of this would be a legal issue, would there be any defense in the fact that, in addition to using these materials to make original claims that could not be made without quotation/reproduction, I am arguing, basically, that the sellers are potentially committing commercial or mail fraud by selling fake antiquities (though ironically they'd be violating Chinese export laws if the items were genuine)?

I'd especially appreciate responses in two categories:

• The legal status of this sort of reproduction, or any good source to turn to about this
• The responses one might expect from scholarly publishers presented with a manuscript containing such material (and advice on dealing with those responses, if negative)

Thanks for any assistance,

Bruce Rusk
Mellon Humanities Fellow
Asian Languages
Stanford University Received on Mon Mar 13 2006 - 23:40:31 GMT