Fool If You Think It’s Over

Just when I thought my 1.5 seconds of “Harry Potter” notoriety were over, I received the following email missive from eBay:

Dear willpc,

You recently listed the following auction-style listing:

150143051343 – HARRY POTTER AND THE DEATHLY HALLOWS–READ IT TOMORROW

The listing was removed because it violated eBay policy.

The rights owner, The Christopher Little Literary Agency, notified eBay that this listing violates intellectual property rights. When eBay receives a report of this type of violation, we remove the listing to comply with the law.

Copyright infringement is unlawful and against eBay’s policies. Copyright is the protection provided by law to the authors of creative works, such as movies, music, software, photographs and books, both published and unpublished. Copyright owners possess the exclusive right to reproduce the copyrighted work, to distribute copies of the copyrighted work, and to perform or display the copyrighted work publicly.

eBay prohibits the listing of unauthorized copies of copyrighted works. Unauthorized copies include (but are not limited to) backup, pirated, duplicated, or bootlegged copies.

Guideline: If the product you are selling is a copy of another work that you aren’t authorized to copy, don’t list the item.

Now, this is really, really, really funny. For one thing, regardless of what the nimrod lawyers from The Christopher Little Literary Agency said in their nastygram to eBay, there’s absolutely no shred of copyright violation in advertising and selling a legitimate copy of a book. I’ve no more violated J.K. Rowling’s copyright than I’ve flown around downtown Atlanta on a broomstick.

The not-funny part about this is, J.D. Nimrod, Esq. has indulged in flat-out deception by charging that the sale of a legitimate, paid-for copy of a book is somehow a copyright violation. This kind of abuse on the part of Big Media organizations is unfortunately rampant, and middlemen like eBay are, as you can read above, hard-wired to respond in their favor without even a cursory investigation as to whether copyright violation claims are valid. Like I said, that’s not funny.

On the other hand, the exceptionally funny part of all this is, all Messrs. Nimrod, Bloviate and Charge managed to accomplish was giving me more money. Here’s the bit I previously redacted from eBay’s notice email:

All fees related to this listing have been credited to your account.

That’s right–not only did The Christopher Little Literary Agency’s nastygram accomplish the decidedly quixotic feat of cancelling an auction that had already been over for about seventeen hours–they made sure that eBay would give me back everything I was charged to advertise and sell the book in the first place. I just went to my account and checked; sure enough, eBay’s mindless bureaucracy has given me a full credit for all fees, a sum I’m more than happy to add to the profits I’ve already collected on the “Hallows” sale.

Oh, and incidentally, I got a nice email from Robin Lenz at Publisher’s Weekly while I was typing up this post; she’s received the book and is quite pleased with her purchase.

So, let’s all enjoy a fine laugh at J.D. Nimrod and his firm of officious idiots. Nice work, guys. Be sure and bill the good Ms. Rowling for all the many hours you’ve spent in making yourselves look like utter morons.

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46 Responses to “Fool If You Think It’s Over”

  1. Doug Says:

    Your exulting over people doing their jobs seems a bit nasty. While you may have bought and paid for the book, it is quite possible that whom you bought it from released it early in violation of some form of contract, and it’s quite legally possible that Rowling’s right to distribution of her work supersedes until the book’s official release. I’m not a lawyer and don’t know the answer but I’m guessing you don’t either. That said, it does look bad for the law firm that they didn’t seem to care that the horse had already left the barn on this one. That said, they have no way of knowing for sure how you came by your copy, so to blithely label them nimrods seems to be more about your opinion of copyright law and lawyers and less about these particular lawyers, who, ultimately, act at the behest of their client.

    You also sensed the ethical dubiousness of selling the book by claiming you weren’t the one blabbing about the contents. However, you had no way of knowing what the auction buyer was going to do with it. If that person drove around to multiple book stores the night of the release and shouted the ending out to the adults and children leaving with their copies, would you be free of all responsibility, having known or should have known that your buyer might do that?

    Enjoy your money and notoriety, and your nice dinner.

  2. Will Collier Says:

    With all due respect, Doug, that’s a pretty lame argument. In the first place, I am not a party to any agreement between the publisher, Rowling, or the resellers. The book is my property, bought and paid for entirely legally, and it’s very public knowledge as to how I got it–public enough that the publishers themselves called me yesterday. Those lawyers are completely out of line, and they know it.

    In the second, speculating about what “might” have happened with the book is lame. Nobody who’d want to go around spreading the story needed my book; by the time I had it they could already Google up the ending for free. It’s like saying that if I sold somebody an R-rated movie, I could be morally liable because they “might” walk around an amusement park showing kids the dirty parts on a portable DVD player.

    But I will enjoy the dinner.

  3. RPD Says:

    I see nothing wrong with exulting over people doing their jobs…incompetently.

  4. Will Collier Says:

    To paraphrase Homer Simpson, if you don’t want me to make fun of you for being stupid, you’re just going to have to stop doing stupid things.

  5. Joe Says:

    How did they get ebay to respond that fast?
    I’ve had ebay never respond to issues….

  6. CJ Says:

    Solid. All of it. Just…solid. As a big law firm lawyer myself (for all I know “Nimrod, Bloviate and Charge LLP” is my firm), you really can’t imagine how much I have enjoyed your shenanigans. I’ve had quite a laugh.

  7. Doug Says:

    You may be right that’s it a lame argument, I didn’t claim to be an expert on copyright law. And maybe we could agree that Rowling would be better suited sending her army of lawyers after the bookseller who delivered your copy early for breach of contract and whatever else they get paid to think up. If it’s the case that copyright holder has no recourse against the eventual buyer when the buyer gets his copy before the copyright holder authorized distribution, than so be it. But I don’t know if that’s the case at all times. If you do know, then by all means, let them have it.

    As to moral responsibility, I think your analogy is a little flawed. I would agree that you hold no responsibility in the case of selling an R-rated tape, but in this instance, you have a copy of something that few others have, and when you aren’t supposed to have it. It would seem to increase the likelihood that someone who buys it from you might have an ill intention with it. To my mind, that would seem to create a higher ethical duty, but we can agree to disagree. What if the buyer told you after the buyout bid they planned to spoil the ending for as many people as possible? I realize in the end, it’s not that big a deal, but I’m curious. Is there a point where you wouldn’t sell it for ethical reasons?

  8. Will Collier Says:

    Doug, I if I had known for a fact that I had the one and only copy of the book “in the wild,” and if there hadn’t already been a leak of the complete text, I’m sure I would have taken the whole thing more seriously. Since none of that was actually the case, the situation as it stands didn’t and doesn’t bother me at all.

  9. David Flanagan Says:

    Will,

    I just read your NRO article regarding the Harry Potter book and enjoyed it. Maybe I’m nutty for suggesting this, but do you think there is any way that the AP reporter called you and lied, saying they were from Scholastic Books?

    Then, after you hung up, they, not knowing who you were, decided to tell readers that you would give no comment.

    I know there is the question of how they obtained an unlisted phone number, but perhaps they received that from eBay or from DeepDiscount.com by lying to those companies as well. Maybe I’m just being cynical, but I wouldn’t put it past the losers.

    Regards,

    David Flanagan
    Viewpointjournal.com

  10. wiredog Says:

    Under the DMCA I think you can sue over false copyright claims, if you can show they have harmed you.

    Might be interesting to post your story to Slashdot.

  11. JohnO Says:

    Since when is spoiling an ending unethical? It’s maybe mean spirited and thoughtless, but I don’t think actual ethics are involved. I can only say I’m envious of the profit margin.

    P.S. I’ve been very impressed with Ebay’s response on issues lately. They saved me $140.00 on a fraudulant transaction, so kudos to them.

  12. Tom Veal Says:

    The legal obligation of a bona fide purchaser for value to observe the terms of a contract to which he isn’t a party is nil. His moral obligation to cooperate in the publisher’s advertising hype is less. The ending of Harry Potter and the Deathly Hallows isn’t a Rowling family secret that we should keep out of consideration for the author’s feelings. It’s a pseudo-secret contrived to draw attention to a commercial product. There’s nothing wrong with that, but there’s also nothing wrong with declining to go along with the game.

    Besides, how do we know that JKR/Scholastic don’t have another surprise up their sleeves?

  13. Will Collier Says:

    David, from what I can gather, Scholastic has been calling people and (very nicely, I feel bad about hanging up) asking them to either not read the book or at least not to tell anybody what’s in it. I assume (but don’t know for sure) that’s the call I got yesterday. Since the person who called me identified herself as being with Scholastic and not the A.P., I stand by my previous call of shenanigans–it’d be true either way.

  14. David Flanagan Says:

    Another point to add to this debate. I’m a HUGE critic of spoilers. I hate them and I think they harm the media industry as a whole.

    Of course, Will did not spoil the book, he just resold it. There’s a world of difference there.

    And if anyone is liable for anything, then it will be DeepDiscount.com for sending the book too soon. And it the publishers tried to hold book sellers accountable, I would be shocked. Talk about biting the hand that feeds you.

    Regards,

    David

  15. MarkW Says:

    While it is possible, quite even probable, that there is a contract between the book reseller and the publisher, said contract does not extend Mr. Collier, who never signed said contract in the first place.

    While Rowlings and the publisher can, and maybe they should go after the reseller for breaking the contract, they have absolutely no grounds for going after Mr. Collier. If they were to try, most courts would not only throw out such a contrived action, they would probably award court costs to Mr. Collier as well. (And that rarely happens in this country.)

    As to Mr. Collier bearing some kind of responsibility for what the person he sold the book does with it, you’ve got to be kidding.

    If you sell a car to someone who gets drunk and kills someone with it, are you guilty of murder as well? Of course not.

  16. Brian Says:

    From the book, paraphrasing:

    “Goblins have a different concept of ownership than wizards; they believe an item belongs to the maker rather than the purchaser. In their minds, we just rent their property, and when we die, the item should revert back to the goblin who made it. They disagree with our practice of allowing sale from one wizard to another, with nothing going to the original creator.”

    It just seemed appropriate.

  17. David Flanagan Says:

    Who knew that Goblins and Bill Gates would have so much in common!

  18. Sigivald Says:

    Doug: Seems to me that the likelihood of an “ill intention” is absurdly low.

    (Especially since anyone wanting to spoil the book can simply say “Harry dies and Voldemort takes over the world!”* without buying a copy, and simply claiming to have one.)

    The only plausible common reason to buy the book like that [the actual reason, for an article, being an uncommon one] is that one is a dedicated fanatic.

    * This is not a spoiler, because I have no idea if it happens – but neither does anyone else who hasn’t read it!

    Anyone with “ill intent” to spoil the book can spread any lie they want – and nobody will know if they’ve been “spoiled” or just “lied to” until they read the book.

    If the psychological effect of thinking you’ve been “spoiled” is the ill, which seems the best analysis to me, then anyone can do ill without any money at all, by lying – and thus Will can’t be particularly culpable even if we accepted the absurd “someone could do something bad!” moral liability theory.

    (As my “spoiler” would have had I claimed to have inside knowledge and not added this disclaimer!)

  19. wooga Says:

    “Copyright owners possess the exclusive right to reproduce the copyrighted work, to distribute copies of the copyrighted work, and to perform or display the copyrighted work publicly.”

    That’s a lie right there. Of course, it’s the same lie that used to appear on the old FBI warnings on VHS tapes. There are certain exceptions, such as for literary criticism.

    Suppose I wrote an article, “Harry Potter announces he is gay at the end of the new book. He says to the school janitor, ‘I am gay.'”

    My article there would be reproducing the copyrighted work (albeit a small portion). Yet my article would not be illegal.

    You’ve already explained how you can do what you want with the hard copy of the book itself.

  20. John Lanius Says:

    Will, I am a lawyer. Not yours, of course, so double-check with a lawyer of your own choosing.

    Three words: FIRST SALE DOCTRINE. (Google the phrase if you don’t know what it means).

    Ram them down the throats of the Christopher Little Literary Agency. If they have any enforceable rights at all, they have them against deepdiscount.com

    Have fun!

  21. Tuffy Says:

    Yeah, but it’s not a question of whether or not they have a case, is it? It’s a chilling effect.

  22. Will Collier Says:

    Thanks, John. I do not expect to hear from J.D. Nimrod, et al, but on the odd chance that I do, I’ll be happy to take your advice.

  23. TRD Says:

    I have a few spoilers from the new Harry Potter book:

    -Severus Snape has a pet rabbit named furball.
    -Draco Malfoy has severe chronic groin itch, contributing to his nasty disposition.
    -Voldemort just saved a bunch of money by switching to Geico.

  24. TRD Says:

    I apologize, people, for spoiling it for all of you.

  25. Frogwhistle Says:

    I wonder, do copyright holders have the right to control where and when their material is distributed?

    Say I buy a newly released (in the US) DVD and then go and sell it on the street in Paris where the film is still being shown in theaters. If the studio that holds the copyright has not authorized the distribution of their material in that market, then I believe I would be infringing on their right to control distribution, no? It wouldn’t matter that I had obtained the DVD legally.

    I think the Rowling lawyers would argue that any distribution (including yours) of her copyrighted material before the authorized distribution date is, well, unauthorized. (no pun intended)

    Anyway, here’s hoping the book proves to be as entertaining as this little saga.

  26. Ardsgaine Says:

    “Since when is spoiling an ending unethical? It’s maybe mean spirited and thoughtless, but I don’t think actual ethics are involved.”

    That’s an interesting philosophy. It must be shared by many mean-spirited and thoughtless people.

  27. Foxfier Says:

    Frogwhistle- Except that such a thing is perfectly legal. There are codes on most DVDs that make it *hard* to watch a DVD from another zone, but it’s not illegal.

  28. john Says:

    If the seller didn’t have the legal right to sell it to you, or offered it to you under terms they were contractually bound not to offer, then it IS NOT YOUR BOOK.

    Its just like you bought the book from someone who stole it, just because you paid for it, doesn’t make it yours.

  29. beckie Says:

    As a longtime VodkaPundit fan AND a bookseller, my eyes widened today when I received an e-mail from Publisher’s Weekly about the brouhaha. When I began to read, saw “Will Collier” & “Atlanta” in the opening sentences I thought “just couldn’t be, could it?” Stopped reading & jumped to VP to see. WOW!! I’m finding this whole scenario quite fun. Kudos to you all around (hey, you didn’t want to fleece a kid, & you fleeced Publisher’s Weekly, too cool!)
    Anyway, I’ve enjoyed how my various worlds have collided today! Enjoy the fame. Need more bandwidth yet?
    Oh & for the record, our copies of Harry Potter only arrived today, and are, as agreed in our contract, locked away until the 21st. I’m just THAT kind of a conservative/libertarian gal.

  30. Craig Says:

    TRD,
    You missed the most important spoiler:
    It turns out that Voldemort is just the name of Harry’s sled.

  31. Robin Roberts Says:

    John, that is not the case here. Copyright law has a doctrine referred to above as the “first sale doctrine” which states that a sale of a copy cuts off the rights of the copyright owner to further exercise rights with respect to the copy. The distributor had the right to sell copies, they just had a contract not to do so early. A contract that the distributor broke, and is liable to Scholastic for damages but Will is not a party to the contract and copyright law does not extend it to him.

  32. andrewdb Says:

    Perhaps a little off topic – but is this very different than someone at, say, the CIA calling up and telling the NY Times something? Ignore the criminal laws on that for a moment. The CIA employee has a contractual requirement to not disclose, but I think it is pretty clear the NYTimes can print what they want. (if they print things harmful to the country I wouldn’t invite them to dine at my home, however)

    The DVD issue is a little more cloudy. You can legally sell a DVD that has “zones” (or whatever those annoying restrictions are) in the “wrong” zone, but in the US the DCMA says I break the law if I try to crack the code and I certainly cannot tell people publically how to do it. I leave to the reader to decide the morality of that law.

  33. Brad Says:

    I had a similar issue with eBay a while back.

    I bought some clothing from Gap online, and they threw a free CD of Madonna and Missy Elliot into the package.

    I put it up on eBay and bidding was up to $25 when eBay pulled the plug on the auction. I received a virtully idemtical nastygram saying that Warner Brothers had ID’d my auction as copyright infringing.

    I tried to find a human to correspond with at eBay, but my emails were answered with boilerplate.

  34. buzz Says:

    Uh, yeah Robin, but their lawyer told ebay something else, so it has to be true! This is the same authentication philosophy that is used by newspapers (it’s in print!), Policemen (a cop wouldnt lie) the Government (the government wouldnt lie) and of course OWNED by lawyers. They pretty much count on it. IE see John and others above vigorously defend this nonsense.

  35. Kurmudge Says:

    Legal publishers pull the same game- a particularly sleazy outfit called PMBR is constantly after E-bay claiming that previous bar review students who go seel their notes and lectures on E-bay are violating IP rights.

    PMBR has some sort of shaky license condition as part of their student agreement (of course because they want to sell the stuff new to everyone for 10 times the aftermarket price), but that privity has nothing to do with E-bay. It is a pure breach of contract issue between PMBR and the former student, and E-bay’s hypersensitivity needs to be taken down a few notches, perhaps with a well-publicized boycott threat.

  36. rosignol Says:

    I wonder, do copyright holders have the right to control where and when their material is distributed?

    Only insofar as they have a contract with a manufacturer, distributor, and retailer. Once the retailer sells it, the purchaser can do whatever they want, with the exception of making duplicates and selling them, which Will did not do.

    Any legal action related to this would have to be against the retailer who screwed up and shipped too early, which is a contract violation, not a criminal or civil violation.

    Will’s clear.

  37. Who Says:

    Will,

    You’re dead wrong. If the bookseller sold it to you in violation of an agreement not to release the book, then they have defrauded the publisher. Copyright is about who can copy and release the product and when. The early release (and thus potential divulgence of material) is most definitely a factor in the potential continued sales of this particular title. If the bookseller didn’t have the right to sell the book, then neither do you, whether you have an agreement with the publisher or not. You are essentially an accessory after the fact to a case of fraud, if the bookseller knowingly violated the agreement, and if not to copyright violation, which includes distribution of and exhibition of copyrighted materials.

    Snicekr all you want – you did wrong, dude.

  38. Mitch Says:

    My counterintuitive take on this matter is that besides yourself, the other winner in this transaction is DeepDiscount.com. What a way to instantly build a reputation for prompt shipment and customer satisfaction! Besides, what is the publisher going to do to them? Delay shipping them the sequel? Ms. Rowling says there won’t be one.

  39. Foxfier Says:

    Y’know, I’m highly amused that the folks defending you, with actual legal information are willing to use emails or websites, while those who rant that you’re evil and a criminal…. do not.

  40. Gail Says:

    Harry Potter has never been of any interest to me whatsoever, but this was great reading! What a bunch of hoohaw over a book that whether spoiled or not will sell umpteen million copies and make the author big bucks. So what if one got sold early and I hope you had a lovely dinner with the Mrs. on the proceeds.

  41. McGehee Says:

    If the bookseller sold it to you in violation of an agreement not to release the book, then they have defrauded the publisher.

    And as has already been stated in this thread, that is between the publisher and the bookseller. Will is under no obligation, contractual or legal, to abide by the terms of an agreement to which he was not a party.

    Under the DMCA I think you can sue over false copyright claims, if you can show they have harmed you.

    Unfortunately, as Will notes, their complaint to eBay had the opposite effect. At least, financially.

  42. mrobvious Says:

    Just be glad Deep Discount didn’t send you Howard Roark’s architectural plans

  43. Greg Says:

    I wonder, do copyright holders have the right to control where and when their material is distributed?

    No, they don’t, and, what’s more, they shouldn’t. When you sell me something, it’s mine, not yours. Just as the money I give you is now yours, and not mine.

    “Region codes” are bullshit.

  44. Robin Roberts Says:

    Unfortunately, Greg, US copyright law does not agree with you.

  45. Foxfier Says:

    Robin, if you are implying it’s illegal to buy and view different coded DVDs, you’re wrong. To *break* the coding is currently considered illegal–I believe there is still a lot of suing going on.

  46. Richard Cook Says:

    You capitalist tool you!! Congrats and go and buy an expensive toy with your hard earned profit.

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