[meteorite-list] EBay analysis

From: Sterling K. Webb <kelly_at_meteoritecentral.com>
Date: Thu Apr 22 10:28:37 2004
Message-ID: <3FA1B4E2.FA927005_at_bhil.com>

This is a re-post of a message I sent yesterday. It never showed up
on the List back to me. If you did get a copy, please delete, as it's
the same. Sorry if I clutter your Inbox.


Hi,

    I too am not-a-lawyer, but there are a couple of points worth
considering.

    1) eBay does indeed position itself as a "venue." It is the original
primordial marketplace, where sellers from far-away lands spread their
wares on
their saddle blankets and wait for a buyer, so to speak, like the bazaar
in
Timbuctoo, brought to the Web.
    The WWW is a VERY PUBLIC PLACE. It was intended to be, continues to
be, and
(hopefully) will continue to be. Whether one comes to it as a business
like eBay
or as a private citizen, there is NO REASONABLE EXPECTATION OF PRIVACY
for either
party.
    To demonstrate that this is a fact one has only to consider that all
transactions on the WWW which are desired to be PRIVATE are accomplished
by
secured documents, like when you dash off to PayPal to pay for that
newly acquired
treasure.
    There is no reasonable expectation of privacy and there is none
(privacy, that
is). Just as if you were walking down a major thoroughfare and someone
pointed a
camera at you. Is there anything you can do to prevent it? No. It's a
public
place.

    2) eBay makes plentiful provision for anyone who truly desires
privacy. Both
sellers and buyers have user id's which could be kept completely
isolated from
their identities if the user wished it so. Very few do. A seller, for
example, who
has a catchy user id but also has prepared and presented an "About ME!"
page which
has their actual name, address, phone number, age, career highlights,
hobbies and
interests, and flattering photos, and which looks like a resume, can
hardly
protest that being publically observed is a violation of their privacy!
All they
are actually saying is that they wish to control their public relations,
to have
you know what they want to be known about them but nothing else, however
public it
may be. Doesn't work that way... in public.

    3) Jamie refers to the data that eBay "keeps easily available," that
is,
transactions within the past thirty days but seems to believe that older
data
still exists. I suggest that he is mistaken in this and that the primary
data of
item sales is largely gone. eBay may store data back 90 days or even six
months in
some form, but I would be willing to bet that longterm data is not kept,
nor is it
legally required to be kept, as eBay only facilitates a transaction
between other
parties and does not conduct that transaction itself, as they take great
pains to
explain to the users. Does the man who rents the stalls in the bazaar
keep track
of every detail of a vendor's sales? Remember that eBay tells you if you
want a
record of a transaction, it is your responsibility to print it out,
which implies
the non-existence of any permanent record and their non-responsibility
to provide
one.
    And if it is true that eBay does not hold proprietary accumulated
data of the
sales, it follows that either they hold it to be of no worth or that
they hold it
to be strictly a matter between other parties. Either way, they cannot
argue that
they then have a compelling interest in it, its accumulation,
dissemination, etc.,
etc. eBay, after all, is not selling nor buying anything. They ask only
to wet
their beak as the goods and money are carried in and out of the
marketplace.

    Apart from the technical means used to collect the data ("robots"),
the only
provision Jamie might have been considered to violate is number ii) in
which the
user promises not to "copy, reproduce, modify, create derivative works
from,
distribute or publicly display any content... from the Site."
    First, an analysis of transactions is NOT "content" unless you can
point a
browser toward an eBay page which shows the same thing. But there is no
such page.

    Second, the terms "copy, reproduce, modify, or create derivative
works"
clearly means making a web page or document that LOOKS like an eBay page
or as if
it were a page whose source was eBay. The context clearly indicates that
"look and
feel" is what is meant.
    Third, eBay auction pages are accessible to both eBay users and
non-users
alike, but the agreement is binding ONLY on users, so if a non-user were
to access
the same pages and accumulate the same data, in other words, do the same
thing as
Jamie did, it would be...? What? Perfectly alright? Not covered by any
rules?
Legal as church on Sunday?
    So therefore, by eBay's own declaration, eBay pages for individual
auctions
are PUBLIC documents and the sales that take place therein are PUBLIC
events. If
they were not, they would be accessible only to users and only after a
log in to
the Site, which is not the case, of course.
    Only if the analysis were based on data taken from pages accessible
only to
registered users or to specific individual users could you maintain that
no
observer could report on what was to be found there. That would mean
that no one
could tell someone else about a weird item they saw on eBay. There could
be no
gushy news stories about the wonders of eBay. All mention or public
discussion of
a meteor-wrong on eBay would be "illegal." No one could laugh outloud at
the
individuals who offer their souls for sale on eBay. Absurd, of course.

    eBay is an excellent resource for market research, particularly for
the market
value of specific items. I have done such research (but not for
meteorites) on
eBay data. Being an old-fashioned sort, I used no robots except for my
two
keyboard fingers and I recorded the results in notebooks in pencil (not
very
cyber, I know). I am only following the same procedure that I would if I
attended
actual physical auctions (which I do). Just as anybody (and everybody)
who lives
by trading would do and does do. How else would I know the market price,
and more
importantly the price trends, of glass doorknobs, Weller pottery, Daion
guitars,
and dozens if not hundreds of other odd objects? And I intend to keep
right on
doing it. I'm just not talking...


Sterling K. Webb
--------------------------------------------------------------------------------------------

Jamie Stephens wrote:

> Listees,
>
> I'm gonna suspend any more preliminary analysis publishing.
> I've already started a discussion with EBay. Meanwhile, I'm
> gonna continue experimenting with the analysis. If/when I
> publish any more data, I'll obfuscate identities as I
> described previously. Probably most of the interesting
> analysis doesn't require identities anyway:
>
> Number of new bidders by week
> Number of new sellers by week
> Total items, dollars sold by week
> Distribution of prices by week
>
> Any debate over those stats?
>
> All of that data is now trivial to obtain (as the raw data
> accumulates). It'll be fun to see the EBay meteorite market
> trends in an objective and comprehensive way. Please stay
> tuned.
>
> This thread has evoled to non-meteoritical topics. Skip
> the rest if you're interested in meteorite stuff only.
>
> Paul,
>
> Very nice discussion.
>
> Yeah, when I said server load was EBay's "primary" concern,
> I meant -- but did not write -- in the context of my specific
> robot. For various reasons, I'd argue that it does not
> consitute a derivate work or otherwise challenges EBay's
> expressed concerns (not even privacy as discussed in their
> text). Here are the numbered items from the EBay paragraph
> you cite:
>
> (i) My stated "primary" concern; #1 on their list as well.
> (ii) There are lots of cases dealing with these terms.
> Is the fact that X bought Y from Z for $N enforceable
> "content"? Elsewhere EBay goes to trouble to position
> itself as a "venue". Interesting. All arguable --
> but not by me now.
> (iii) No interference with the site.
> (iv) No bypass of robot exclusions.
>
> That said, my (experimental) robot is probably in violation of
> EBay's User Agreement simply because the agreement prohibits
> all robots. No need to research it, Mike. Whether the
> agreement and other EBay statements would withstand challenges
> from a system like mine is a different matter -- one I'm not
> interested in pursuing. I'm asking permission.
>
> Aside: EBay's robot prohibition is muddled. They do allow
> for some "automated means" (e.g., auction and bidding tools).
> Also note
>
> http://www.ebay.com/robots.txt
>
> which, incidently, does not restrict the pages I use. Why not?
>
> BTW, my background includes lots of large-scale data integration
> work. Also I have fair amount of experience in intellectual
> property licensing (including user agreements); patent
> prosecution, infringement, and licensing; and other IP-related
> activities. But, as I frequently say in this context, IANAL.
> (I Am Not A Lawyer.) I do hang out with them a fair amount.
> At Christmas, they send me gifts, which I fear they bought with
> my money.
>
> Thanks for the feedback, Paul.
>
> --Jamie
>
> LITIG8NSHARK_at_aol.com wrote:
>
> > Good day Folks,
> >
> > I have been following the thread about the compilation of statistical
> > information regarding the sales/purchases of meteorites on eBay.
> > Personally, I found the compilation both interesting and informative and
> > I have no objection to having been included in the published compilation.
> >
> > That having being said, I'd like to preface the following by stating
> > that while I am by no means an expert in "cyber law", I am an attorney.
> > I must admit that when "robots" were mentioned in a recent post to the
> > list I had to do some research to try and figure out exactly what a
> > robot was and what it did. I don't claim to be a computer
> > programer/analyst either. Now that I have a rough idea what a "robot"
> > is and what it does I'd like to share some of my thoughts regarding the
> > compilation of statistical information from eBay.
> >
> > I accessed eBay's policy regarding the use of robots on it's site. I
> > agree with one writer's proposition that one of the reasons eBay
> > prohibits robots from accessing its site, in some circumstances, is to
> > prevent a drain on its server. However, I can't entirely agree that
> > that is eBay's primary goal. In October 1997, eBay was involved in a
> > serious dispute with Onsale, a competitor, over Onsale's use of a robot
> > program to harvest the email addresses of eBay users. (Note that in 1997
> > eBay made it much easier than it is today to access the email addresses
> > of members.) I suspect that it was subsequent to this dispute that eBay
> > placed in its User Policy the prohibition against use of robots, spiders
> > etc. It would appear that eBay is also interested in protecting itself
> > from what it views as unfair competition.
> >
> > As can seen below in a paste of the pertinent part of eBay's user policy
> > regarding *Access and Interference*, the use of robots is clearly
> > prohibited absent express written permission from eBay. The policy
> > language goes further in requiring that, even _with_ eBay's express
> > written permission to use a robot for the creation of a derivative work
> > (compilation of statistical information) on any other member other than
> > yourself, you are obligated to obtain the express written permission of
> > the "third party," which I interpret to mean the party who's information
> > you are seeking to compile. This, I believe, is intended, at least in
> > part, to provide for some level of privacy for eBay members.
> >
> > From a strict reading of eBay's policy language one could reasonably
> > infer that it is not only the public dissemination of the compilation of
> > statistical information that is being prohibited, absent the required
> > express written permission of eBay and the third party affected, but
> > *also* the private (unpublished) compilation itself. However, I sense
> > that the prohibition of the compilation of statistical information for
> > the /purely private use/ of the compiler might not be enforceable in
> > court and might be attacked as being vague and overbroad given that
> > eBay's software actually provides tools that allow for the compilation
> > of such information. Granted, without the use of a robot program the
> > compilation would be very time consuming, if not entirely impractical.
> >
> > Finally, putting aside any legal implications (as far as eBay is
> > concerned) of compiling statistical information about eBay members, the
> > publication of such information has the potential for what some might
> > consider abuse. As an example, because the sale of items may have tax
> > consequences for a seller in some countries, I can imagine a scenario
> > where one disgruntled member might use, or threaten to use, the compiled
> > information to the detriment of another member.
> >
> > Just a thought.
> >
> > *The preceding has not been intended to provide legal advise regarding
> > the compilation of statistical information from eBay resources. It has
> > simply been my thoughts and personal opinions. Should you have specific
> > questions along this line you should consult with an expert in "cyber law".*
> >
> > Have a great day All.
> >
> > Best Regards,
> >
> > Paul
> >
> >
> > **
> > *Access and Interference*.
> > The Site contains robot exclusion headers. Much of the information on
> > the Site is updated on a real time basis and is proprietary or is
> > licensed to eBay by our users or third parties. You agree that you will
> > not use any robot, spider, scraper or other automated means to access
> > the Site for any purpose without our express written permission.
> > Additionally, you agree that you will not: (i) take any action that
> > imposes, or may impose in our sole discretion an unreasonable or
> > disproportionately large load on our infrastructure; (ii) 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; (iii) interfere or attempt to interfere with the
> > proper working of the Site or any activities conducted on the Site; or
> > (iv) bypass our robot exclusion headers or other measures we may use to
> > prevent or restrict access to the Site.
> >
> >
>
> ______________________________________________
> Meteorite-list mailing list
> Meteorite-list_at_meteoritecentral.com
> http://www.pairlist.net/mailman/listinfo/meteorite-list
Received on Thu 30 Oct 2003 08:03:30 PM PST