Prototype sales under siege on Ebay?

[Marco(2)]

Hi all,

 

As one of the bidders on an Activision prototype, I received the following email from Ebay today:

 

1308065547 - PROTOTYPE Atari 2600 BARNSTORMING ACTIVISION

 

was ended early by eBay for a listing violation. A Verified Rights Owner, such as a copyright, trademark, or patent owner, notified eBay that the item or material contained in the listing infringes its intellectual property rights. eBay takes no position on the authenticity or authorized nature of such items, but we take appropriate action when requested by a Verified Rights Owner. Since the listing was ended early, you as a bidder are not required to complete the transaction. Sellers that feel their listings may have been ended in error have the opportunity to get in touch with the relevant person or company or contact eBay.

 

What do you make of this? The end of selling prototypes as we know it?

 

Cheers,

 

Marco

[Rhindle The Red]

It's going to be case by case. EBay only shuts down these auctions when specifically requested to by the copyright holders. In ambiguous cases, they err on the side of shutting the auction down.

 

Activision is obviously still using these properties (the all-in-one system and various collections show that) so they shut it down.

 

Most companies (Atari/Infogrames included) have shown little interest in their old games, so are unlikely to have those auctions shut down.

 

Most prototypes are pobably safe, unless eBay changes their TOS to exlude them. Then they may shut them down without a direct request...

[Albert]

Apparently someone put up a beta of Tony Hawk 3 for the Playstation 2 on eBay before it was released and Activision was not too pleased about it. So now they're paying close attention to any Activision-related auctions on eBay. I have no problem with them going after auctions like a beta of Tony Hawk 3, but it's disappointing to see them going after 2600 prototypes.

 

I wouldn't worry about prototypes from other companies, although it would be unfortunate if Infogrames started approaching this issue the same way.

 

..Al

[Blackjax]

One thing to remember...

 

Some prototype buyers (one NES proto fantic in particular who shall remain nameless) will use this as a tactic to buy the proto outside of eBay.

 

this is a horrible horrible tactic most of us don't resort too... I usually just get outbid in peace, but hopefully, this is more along the lines of what Albert said... this is the lowest of the low of eBay tactics...

[beattheindierock]

I have had that happen many times on E-bay. Sumguy will "inform" me that the auction is probly going to be cancelled and if I would be willing to sell off E-bay. I mean, come on, you know 9 times out of 10 that same guy reported you. I tried selling a Parnesian game for Nintendo a while back and the auction was cancelled due to it's content or whatever lame excuse E-bay gave. Shortly thereafter I got an e-mail from a nutcase offering me 10 bucks for it. I didn't waste my time to respond. Those games sell well over $200. A shame. I would hope this is not going to happen with Atari protos because I, like many others, have a great deal of interest in these.

[Ze_ro]

quote:

---

Originally posted by Rhindle The Red:

Activision is obviously still using these properties (the all-in-one system and various collections show that) so they shut it down.

---

 

But, that doesn't make any sense... then they would have to be going after ALL cartridge sales, prototype or not. I bought a copy of Barnstorming over eBay not long ago, and Activision isn't busting down my door.

 

--Zero

[Albert]

quote:

---

Originally posted by Ze_ro:

But, that doesn't make any sense... then they would have to be going after ALL cartridge sales, prototype or not. I bought a copy of Barnstorming over eBay not long ago, and Activision isn't busting down my door.

---

 

No, they'd never go after cartridge sales. Those were commercially released products that were available for purchase by any consumer. The prototypes, though, were property of Activision and never available for purchase. Under typical agreements (like an NDA you might sign in order to be given a prototype for whatever reason) you are supposed to return this property back to the company that "loaned" it to you. Many companies might not have enforced this too strongly, which is fortunate these days since so many prototypes are floating around.

 

So since these games were never released you are selling Activision's intellectual and physical property without a license to do so. But I'm not a lawyer (IANAL). They may not have any rights to these protos given the amount of time that's passed, but it's easy to intimidate people with lawyers (unfortunately).

 

..Al

[Rhindle The Red]

quote:

---

Originally posted by Ze_ro:

But, that doesn't make any sense... then they would have to be going after ALL cartridge sales, prototype or not. I bought a copy of Barnstorming over eBay not long ago, and Activision isn't busting down my door.

---

 

There's a big difference between a legally obtained cartridge and prototypes/lab loaners which, technically, almost always are still the legal property of the company. They have a vested interest (albeit a small one) in not allowing potentially unfinished games to readily reach the marketplace.

 

You can agree or disagree with their decision, but Activision had to have been the ones to shut the auction down. As eBay clearly states it was "A Verified Rights Owner, such as a copyright, trademark, or patent owner" that complained. They will not shut down an auction because someone other than a "Verified Rights Owner" complains.

 

Of course, someone trying to shut an auction down could just contact Activision directly...

[s-kelly]

I would suggest that everyone who thinks this is riduculous email eBay and let their thoughts be known! I had an auction for a Genesis prototype shut-down last week myself and I most certainly let eBay know how ridiculous I thought their action was.

 

If you look at eBay's user agreement, specifically the part about "Game Software", it's simply amazing!

 

quote

According to Sony, Sega and Nintendo, the following items could potentially be infringing, and both the seller and the buyer could be at risk for infringement:

 

That's just the first line and in it they are essentially saying that these companies really don't have the slightest idea if the items listed below infringe on their rights, but just in case one does, let's not allow any of them to be auctioned.

 

eBay also seems to acknowledge, in that very same line, that eBay itself could not be held liable IF one of these companies were to prove some sort of infringement. The seller and buyer "COULD" be at risk. Well why not let the seller and buyer take that risk if they care to?

 

In my opinion, eBay needs to be constantly reminded who is paying their bills and their salaries. It's certainly not Sega, Sony, Nintendo, etc. who's rights MIGHT be infringed, it's the folks who are buying and selling this stuff on eBay. If any of these companies would care to criminally prosecute one of the sellers (myself included) and prove there is some sort of infringement, hey, they win (which I highly doubt they would). Until then, wouldn't it be wiser to side with your customers rather than some corporation from which you do not get a dime?

[Albert]

quote:

---

Originally posted by s-kelly:

In my opinion, eBay needs to be constantly reminded who is paying their bills and their salaries. It's certainly not Sega, Sony, Nintendo, etc. who's rights MIGHT be infringed, it's the folks who are buying and selling this stuff on eBay. If any of these companies would care to criminally prosecute one of the sellers (myself included) and prove there is some sort of infringement, hey, they win (which I highly doubt they would). Until then, wouldn't it be wiser to side with your customers rather than some corporation from which you do not get a dime?

---

 

I wholeheartedly agree with you. It's far to easy for someone to say "This item infringes on my rights!" without having to prove a damn thing. I bet I could get a shitload of auctions shut down on eBay by just sneezing. eBay needs to tell these companies to take a flying leap and for them to go after the buyers and sellers. If they did that, it'd be considerably more work for the company trying to shut down the auctions, when in many case they may not have a strong legal case. So they probably would just leave most of these auctions alone, except for cases like the Tony Hawk 3 beta I stated above. But since eBay backs down so easily, it makes it very easy for companies to harass individuals. The evil DMCA is partly to blame for all this.

 

..Al

[s-kelly]

Albert brought up another topic I discussed in my email to eBay.

 

quote

Under typical agreements (like an NDA you might sign in order to be given a prototype for whatever reason) you are supposed to return this property back to the company that "loaned" it to you. Many companies might not have enforced this too strongly, which is fortunate these days since so many prototypes are floating around.  

 

This is absolutely true. To put it bluntly, it's really tough shit now. If they were so concerned with what happened to all their review copies, they should have kept track of them and prosecuted the folks who didn't return them. It's ludicrous for these companies to show-up 15 years later after someone has purchased one of these review copies at a flea market and say "Hey...that's ours by the way. We forgot to get it back 15 years ago". How does the old saying go? You snooze...you lose!

[s-kelly]

quote

except for cases like the Tony Hawk 3 beta I stated above. But since eBay backs down so easily, it makes it very easy for companies to harass individuals.

 

Actually, I don't even agree with the Tony Hawk 3 example. If Activision was so stupid as to not somehow encode the reviewer's name into their copy of the game, they screwed up. Put the guy's name in it somewhere so they can PROVE where it came from, win the auction, and go after the guy who it was sent to. The guy who's auctioning it may or MAY NOT be at fault in any way. The guy who it was sent to is definitely at fault and legally prosecutable under the NDA he signed in order to get the game in the first place.

[Ze_ro]

quote:

---

Originally posted by s-kelly:

eBay also seems to acknowledge, in that very same line, that eBay itself could not be held liable IF one of these companies were to prove some sort of infringement. The seller and buyer "COULD" be at risk. Well why not let the seller and buyer take that risk if they care to?

---

 

I agree with you, but I don't think it's fair to blame eBay here. They're just trying to avoid getting sued... and if you don't think they could be sued for this, think again. Just look at Napster. They were torn through the legal paper shredder when it was really the Napster users who were pirating. I don't think it's fair to blame the medium, but that seems to be the hip thing to do these days (Have problems? It must have been your parents fault!). eBay isn't trying to keep you from your Atari prototypes, they're just trying to make sure they can't get sued.

 

quote

Originally posted by Rhindle The RedThere's a big difference between a legally obtained cartridge and prototypes/lab loaners which, technically, almost always are still the legal property of the company.

 

Yeah, I guess you're right... it just seems stupid to prevent people from getting something that wasn't even finished when they can actually get the finished thing for less. But I'd be more inclined to believe that it was some jerk doing this in an attempt to get the game for himself rather than Activision "cracking down"....

 

(As a side note, I finally see my new Avatar... I guess my ISP must be caching weeks worth of web content at a time for some reason)

 

--Zero

[s-kelly]

quote

Just look at Napster. They were torn through the legal paper shredder when it was really the Napster users who were pirating.  

 

I can see where you're coming from with the Napster comparison and while I don't want to get into a whole Napster discussion, I believe Napster was the victim of their own ineptitude. The company had practically no money and what it did have was "borrowed" from it's investors. To top it off, they were up against companies worth billions. So when this little, poor, company is being chased-down by other companies with an endless supply of cash to throw around, the investors left skid-marks and Napster was toast.

 

The big difference here, though, is that eBay is not some little company with no income - they're worth tens of millions. They can protect themselves from Sega or Sony or Nintendo and they shouldn't be so easily intimidated by legal "what ifs". They should remember HOW they got to be where they are and strive to protect their customers rather than run and hide because something MIGHT happen. They should utilize their high-paid legal team to find out if this "potential infringement" the videogame companies hinting about holds any water as a service to the people who pay for this legal team.

 

I know, eBay is far from the only company who forgets it's roots, but having watched it grow several hundred auctions listed daily to several hundred listed every minute, it's particularly sad to see what has happened to them.

[Rhindle The Red]

quote:

---

Originally posted by s-kelly:

Actually, I don't even agree with the Tony Hawk 3 example. If Activision was so stupid as to not somehow encode the reviewer's name into their copy of the game, they screwed up. Put the guy's name in it somewhere so they can PROVE where it came from, win the auction, and go after the guy who it was sent to. The guy who's auctioning it may or MAY NOT be at fault in any way. The guy who it was sent to is definitely at fault and legally prosecutable under the NDA he signed in order to get the game in the first place.

---

 

If Activision knows that anyone who had a beta of THPS3 signed a NDA and one is on eBay, you can bet it's stolen, one way or another. Regardless of who was "stupid" in allowing it to get out to the collector's market, it is still stolen property.

 

Trafficing in stolen goods or facilitating the trafficing of stolen goods is illegal. You would have eBay engage in blatantly illegal activity themselves?

[s-kelly]

quote

If Activision knows that anyone who had a beta of THPS3 signed a NDA and one is on eBay, you can bet it's stolen

 

Personally, I think it would be just as easy to believe the person to whom it was sent sold it, made copies for his buddies, or just plain gave it away to someone. Maybe Activision threw it in their dumpster and this guy happened to do some diving that night?

 

In this scenario, if I was under a NDA with Activision and someone had broken into my home and stole a preview copy of a game (hopefully among other things), I would a) make sure Activision was aware the game had been stolen, and b) watch eBay myself for my property to start showing up. As soon as something did, having the person's auction ended would be about the last I'd be concerning myself with.

 

Taking it one step further, I don't see myself then searching eBay for anything and everything that had been taken from me in my lifetime.

 

"Hey eBay, the bicycle in auction #11010101 was stolen from me in the third grade. Please end this auction immediately."

 

or

 

"The Hot Wheels car in auction #1101000 was lent to the seller by me in fifth grade and he never returned it. Please end the auction immediately."

 

I realize I'm not comparing apples to apples here, but this is my point. If the Tony Hawk 3 could be proven stolen by ANYONE, by all means, prosecute the guy. But it having been stolen is only one possibility and in order for eBay to be facilitating the trafficing of stolen goods, doesn't it need to be proven the goods are stolen first?

[liquid_sky]

small question in a lively thread, ill post my views tommarrow.. right now im just curious on who to email at ebay to give my views of all this..

[jahfish]

sean you liar ... it was my hot wheels car ... you stole it from mein 4th grade

[Malix]

So By this Thread Tempest should be worried about the FBI Repelling into his living room and confiscating his Proto's???

 

It is "borrowed" Property. Correct??

[jahfish]

no, we're testers and legitimate holders of borrowed items.

 

would anyone dought that we're atari- & gaming-pros ???

 

 

 

 

the only existing problem, is that the adresses to send the carts back to are not valid anymore.

 

but we can't be punisched for that ....

 

 

 

 

pump your fist for your protos!

 

the revolution won't be televised, that's why we constantly play atari!