Re: Fair use of eBay?

An almost textbook example of fair use, in my opinion. The protected works are on the low end of the factual-creative continuum; the use is wholly transformative; although the whole ad is copied, it's not much and not reducible; and the use doesn't affect the author's commercial exploitation of his rights in the work at all.

John Noble

At 1:40 PM -0500 3/13/06, Bruce Rusk wrote:
>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:
>-----------------------------------------------------
>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
>
>
>
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Received on Thu Mar 16 2006 - 04:15:01 GMT