I’m not sure I understand what you are suggesting…
Please pardon my ignorance - but I’m struggling to see what you see. My understanding - AMZ uses the word “sold,” which is past tense - which seems to me to indicate they are looking for past sales of any number of units. I have had 0 sales. (I guess one could argue that zero is a number in this case? But that’s another can of worms for a different forum I think)
Ok - I might draft an email in the morning and post it here…
Keep in mind that the notices may not have been written by someone with English as a first language or strong writing skills. I don’t think Amazon has an editor who reviews the pages after they’re written either.
I think what they meant to say was “Proof that you never had the reported product for sale.”
It’s against the rules to even list an item you’re not allowed to list.
“Amazon does not allow listings that violate the intellectual property rights of brands or other rights owners.”
They don’t have to wait until you sell one to take down your listing. But they could word that request better.
Ah. Now I understand what you’re saying. Hmm Do you suggest that I remove that line altogether?
Also, this is dumb. If I’m not allowed to list something… then um… well… don’t let me list it? It’s rarely an issue with books - but something I never quite understood regardless.
The first sale doctrine is irrelevant here because of the claim of copyright infringement.
Examine these two threads and then file the appropriate response (DMCA counter notice) to BodyBoss’s copyright claim.
Personally, I would also threaten to get an attorney for tortious interference (I have no problem getting an attorney and I don’t bluff). I would turn around and make their lives a living hell for filing a falsified copyright infringement case.
It just happened to me also.I source me books the same way you do. Please keep us posted if you are able to get cleared
I probably wouldn’t include it. You don’t need it since your defense is that you are selling a used copy which you are allowed to do under the 1st Sale Doctrine.
I’ve been wondering that for years then it occurred to me, it’s much too logical for Amazon.
Hmmm…Have you found some alternative interpretation of the 1st Sale Doctrine hidden away deep in the bowels of caselaw?
No. The complaint is copyright violation, not something such as “used but sold new” so in my opinion that is irrelevant to the claim made against the OP. The OP should be dealing with the copyright issue, which is the complaint against them.
Had the complaint been for a different reason, the first sale doctrine might apply.
One of us does not understand the 1st Sale Doctrine.
The way you deal with the copyright issue is you tell Amazon and the publisher that you are selling a used copy of the book which is protected commerce under the 1st Sale Doctrine (aka The Exhaustion Rule).
Out of curiosity, for what reason do you figure it WOULD apply?
From what Ive observed Amazon does not care if the complaint is real or not. They have been notified of a possible violation, if they don’t take action its potential liability. They have zero incentive to sort it out. A long shot and your best shot is to get the company to withdraw its complaint. A lawyer will most likely be needed.
Ultimately if I was the OP I’d file a counter notice, especially when you have a used book. This entire DMCA notice scam exists because sellers are not included to file counter notices. I also identified the filing party (i.e. the other seller ) is likely not in compliance with the full customer reviews policy. This other seller who is trying to monopolize the page and Amazon for their financial gain should likely be banned from Amazon.
We believe this listing has been reported for copyright infringement in error. No, you are stating it was reported in error.
I’m not sure I understand what you are suggesting…
Your language lacks confidence, a killer on POAs
Never say you think, you believe, etc.
Show you know.
Just curious - and pardon my ignorance… how are you identifying this?
So if I understand you correctly, you have two recommendations - file a DMCA counter notice (The one drafted by Schadenfreudist?) and to contact the publisher (or in this case, the only other merchant on the listing) to threaten an attorney. Are you suggesting that I do both? Or one or the other?
If your suggestion to threaten an attorney stands - How would suggest I go about doing that? (pardon my ignorance, details [and your time in this] are greatly appreciated)
You should definitely file a DMCA counter notice. At the same time, I would also retain an attorney so that they can deal with Body Boss and have them retract their complaint. I would not just “threaten” them and not follow through with it.
The problem with a lot (at least some) of these companies is that they believe they can control who sells what after the item is sold. To this degree it would be as Dexterm stated, a first sale doctrine issue. In your case, I diverge from Dexterm’s approach because the complaint against you is for violating someone’s copyright. Since they filed an IP complaint, I think it would be prudent to deal with the complaint itself and have it removed from your account.
This product originally came from them. Since you are only selling something that THEY themselves produced, you did not violate copyright laws. My suggestion was to focus on getting the copyright infringement complaint retracted and removed from affecting your account. Having repeated IP complaints is not good for a seller’s Amazon account and could land you a suspension, which is why I advocate hiring an attorney to get the complaint itself removed.
Oh, one more thing. Make sure the attorney you hire is very familiar with Amazon, Amazon policy, e-commerce, and the whole shebang, as well as IP law. In your first consultation, it should be very apparent whether they know what to do or not.
Others might disagree with this approach and I respect that. I am just telling you how I personally would handle this complaint if it were made against me. Regardless of my difference of opinion with Dexterm regarding this situation, I believe they do prove to be a valuable forum resource.
At it’s essence the 1st Sale Doctrine states that the IP owner has the absolute right to first sale of their copyrighted property. After that, their rights are exhausted for the individual item sold or otherwise disposed of. The only violation that there can be to that doctrine is if the IP owner did not get their right to 1st Sale. In other words, the copy was stolen or is a bootleg copy. The OP’s defense, their ONLY defense here, is that they are selling a legitimately acquired copy of the book and so the IP owners right to first sale is exhausted.
The IP owners complaint IS that the OP violated their right to first sale. That IS what an IP complaint is. Is there another category of IP complaint that doesn’t relate to the IP owners right to 1st Sale?
I’ve dealt with a number of these cases and hiring an attorney or even filing a DMCA counterclaim is gross over-kill. You don’t need to waste all your time doing that…at least yet.
Usually a publisher will retract their claim if you explain to them that you are selling a used copy that you acquired legitimately. That’s what the law and Amazon refer to as the first sale doctrine defense.
Also, you should click the appeal button next to the IP complaint on your Amazon account and explain to Amazon that you are selling a used copy and the 1st Sale doctrine allows you to.
If the publisher refuses to retract their claim then you can think about taking more stringent measures, as Uncle Leroy suggests, depending on how much time and resources you want to put into getting it removed.
Just file the copyright counter notice, no need to worry about anything else. There is virtually no chance they would file legal response against you, because they wouldn’t appear to have a case. Any attorney would advise them their chances of success are low. Likewise, they filed against you because they thought you wouldn’t file in response. So answer is use same “tactic” in response and file counter notice - you can find a template and instructions in the forum. I submitted three myself yesterday!
That is exactly what I would do September