The Monkey House

< Writing : Rants : eBay >


eBay is the bad guy in this story. I single them out not because they are uniquely awful in any particular respect but precisely because their attitudes, policies, and enforcement mechanisms are emblematic of the present, recent past, and foreseeable future of large platforms whose norms become de-facto law due to the practical impossibility of holding them to the limits of the actual laws of any particular country.

I have had an eBay account for over a decade, acting as both a buyer and seller. Over that time, eBay policies and procedures have changed in ways that seems broadly in keeping with overall (US) corporate trends, and somewhat in keeping with the reality of eBay's increased size and scope. As eBay has grown, it has become less interested in taking on risk to pursue further growth, and more interested in maximizing revenue from its existing user base.

Today's narrative concerns some HP toner acquired at a business closing, sold on ebay.com in early 2020. The auction went live on a Saturday afternoon, with the first toner cartridge sold Sunday morning, and the remainder by Monday afternoon. The items were promptly paid for by the buyers, and I packaged and shipped them out. The following day, eBay notified me that this already-completed listing had been deleted. This raised a number of questions, principally "what is the problem here?" and "what do you think the point of deleting the listing is, since the sale is already complete?"

What is the problem here?

Answering the first question — "what is the problem here?" — proved to be surprisingly difficult. eBay's initial email began with "We had to remove your listing because it didnít follow our VeRO Parallel Import Policy" and helpfully included a URL for more information. The more-information link pointed to some brief generic boilerplate about the VeRO program, but nothing about the "VeRO Parallel Import Policy" mentioned in the email. Indeed, no such policy exists! The "Search eBay Help" field on the VeRO page fails to turn up any results for "parallel import" and resorting to a google search for the term at ebay.com fails to turn up any such policy either. As far as I can tell, eBay actually has no such policy that sellers can read. Perhaps it's an internal policy that they expect me to know about through some sort of divination magic?

The email continued "Your listing was reported by Hewlett-Packard Development Company, L.P. for offering shipping to other countries without their permission." This provides some clue. Throughout our subsequent communications, eBay repeatedly directed me to contact the "rights owner" at enforcement_hpinc@pointerbp.nl because eBay themselves do not know and do not care what the problem is. That address belongs to Pointer Brand Protection, not HP (in any of its worldwide guises), and I think we can all agree that HP has not sold its trademarks to some "brand protection" vultures out of the Netherlands. Clearly then, this characterization of PointerBP as the "rights owner" is another lie on eBay's part.

But, always up for a lark, I did as I was asked and sent Pointer an email: "What rights are you asserting with regard to eBay auction ID [auction number]?" and in due course I got a response:

We kindly invite you to read eBay's International Trade Policy on the following page: https://www.ebay.com/help/policies/prohibited-restricted-items/international-trading-policy?id=4338 To be specific, offering for sale products or services that bear HP's trademarks in the European Economic Area (EEA) violates HPís trademark rights, when these products were not put on the market in the EEA by HP. This follows from Art. 15 of EU Reg. 2017/1001 (European Union Trademark Regulation).

They then included a list of EEA countries and because they're charlatans, concluded with "For security reasons, we are not allowed to provide further details." But I forged gamely on, pointing out that the items I had listed for sale were and still are "put on the market in the EEA by HP" and I even included a link to HP's UK website where they were listing that item, identical in both description and part number, for sale in the EEA (this was pre-Brexit). Their response?

Thank you for your emails. We are confident that our legal position for removing your listing from eBay is correct. [...] We consider this matter closed. This is the final communication you will receive from us concerning this matter.

And true to their word, they ignored further email from me. So that was a dead end.

So there is apparently an unwritten policy that eBay is aggressively enforcing. The initial email from eBay continues:

Listings that don't follow this policy in the future will be ended. In addition, there will be a temporary 3-day restriction placed on your account, and your other listings will be hidden from search during this period. All fees paid or payable for listings that are ended and/or hidden from search will not be refunded or otherwise credited to your account.

What was the point?

If anything, trying to figure out a purpose to eBay's actions is even more difficult than figuring out what the initial problem was. I spent six weeks badgering eBay customer support via their email-like messenger service, via Twitter support, and by phone, and have managed to piece together a few things. The overall picture is of a company that doesn't know what they're doing or why they're doing it, but their internal procedures say it must be done.

I am not an IP lawyer, let alone a European IP lawyer, and neither Pointer nor eBay has made any particular effort to describe the contours of European IP law in this case, so I've had to do a bit of digging on my own. Parallel import is a legal theory that's apparently still prevalent in the EU, but which has been roundly condemned as bullshit by the courts in the US and many other countries. The theory is that if I produce an ACME WidgetBlaster 5000 and trademark that term, then I get to decide where you can sell your WidgetBlaster after I've sold it to you. There are variants of this theory based on copyright and other IP rights, but the basic thrust of the argument is the same: IP rights that govern production (such as copyright, the right to duplicate a work) or advertising (such as trademark, the right to the use of a term to describe a particular product and not an equivalent made by a competitor) also somehow extend to resale. But when you resell your WidgetBlaster, no new copies are being made, and the property being sold is being correctly described, so neither copyright nor trademark rights are being violated; nonetheless some very foolish people think this is bad and should be stopped.

Even if we were to assume that these laws are perfectly reasonable, why would they be enforceable? It is unclear to me why I would be beholden to EU laws restricting speech. I, a US citizen within the US, offered to sell an item I purchased and legally own here; another US citizen within the US offered to buy it; we concluded the deal with all aspects of the transaction occurring within the US. Where is the EU connection which causes their laws to extend to our conduct?

The most plausible answer to that question is that I "offered for sale" the toner by failing to un-check a box in eBay's auction setup screen. But that, too, is bullshit: the item was not for sale in the EU, but rather right here in the continental US. It is the (hypothetical) European who is coming here (virtually) to purchase my toner, not the toner which is going there to be sold. This is no different than a European who travels to the US to visit relatives and load up on cheap camera equipment while they're here: nobody would argue that a US brick-and-mortar retailer is "offering for sale" anything in the EU in that scenario. The sale occurs where the item is; then, post-sale, the item is shipped elsewhere. There are two transactions occurring sequentially: first, ownership changes from me to the buyer by way of a sale; then, physical custody changes from me to them by way of shipping. The shipping may involve import duties and other border control activities which are properly the domain of EU laws, but the sale does not.

Seriously: what was the point?

Even if we accept — and I do not — that it's illegal on the basis of EU law to, as a US citizen within the US, so much as say "Sure, I'd export this used item into the EU if you paid me for it," I still struggle to justify eBay's actions. Remember, this auction was already done: the listed items had been sold, paid for, and shipped before eBay took any action in this case. Had they been shipped to Europe then conceivably eBay could have alerted customs agents to intercept it and potentially assess some sort of penalty. But that was not the scenario here.

I don't know what eBay hoped to gain by this farce, but I can say what they hoped to avoid: responsibility. Their initial email said they "had to" remove my listing. But of course this is a lie. Listing removal is an editorial choice they made based on internal private policies that they've decided to implement. They have the right, but no legal obligation to remove listings, despite the language in their email and the explicit claims made by their customer service reps. Though it's under continual attack, Section 230 of the Communications Decency Act makes clear that a (US) provider hosting content generated by a third party is not liable for that content [with some IP related exceptions, such as those implemented by the Digital Millennium Copyright Act, which are not implicated here]. And, to be clear, Section 230 does not create that liability shield, but merely strengthens it in practice by making it cheaper to assert a First Amendment defense earlier in a lawsuit, prior to a full trial.

In summary: eBay had no legal obligation to take action here, no moral obligation to right some wrong, and no obvious financial incentive to intervene. The only practical effect of their decision was a waste of a lot of time — theirs and mine — and some confusion on the part of the buyer who can't leave feedback because the transaction 'never happened.' So why did they do it? "We had to..." and "For security reasons..." In other words: don't ask.

Version 1.0     |     Originally written: March 11, 2020     |     Latest revision: November 27, 2021     |     Page last generated: 2023-09-10 10:11 CDT