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Tiffany’s Lawyers: Well-Paid, but Bad at Analogies

We recently happily reported that a judge had struck down a suit by Tiffany’s against eBay.  We noted in Business Week that they ruling ensured that “if you weren’t born with a Tiffany silver spoon in your mouth, you can still buy one on eBay.”


Unfortunately (but not surprisingly), Tiffany has made a grab for that spoon and appealed the ruling.  Mike Masnick at TechDirt responds to the following argument made by Tiffany’s lawyers:


If one were a flea market operator and you become aware
that counterfeiting is going on with the individual sellers at the flea
market, you have a duty to investigate it. Why is eBay any different
from that analogy?”

Well, two things, actually. First, it’s the
individual seller in that situation that’s liable, not the flea market
operator, and much more importantly, eBay is quite different
than a typical flea market in that it doesn’t pre-vet any of the
sellers. A traditional flea market involves the flea market operator
finding sellers. eBay is just a platform where anyone can sell.
That is, eBay has simply no knowledge of what anyone is selling on the
site — nor should it be required to. The law is pretty clear on this,
so it’s not at all clear what Tiffany thinks it’s going to accomplish
here other than to waste a lot of money on lawyers who seem to be
giving the company really bad advice.