Ebay Fee Avoidance?

I wonder if ebay may allow this seller to do what he does as he promotes the idea that you can get things really cheap on ebay. A DVD for one cent is what is braged to friend (leaving off the shipping charge as it spoils the brag)
He is a power seller! And is putting a lot of volume through ebay. If he is paying 20c for each listing and has done over 25,000 listings in less than a year, he will stil have paid ebay over $5,000.00 in fees.

Anyway, the total price including shipping is $8.00
and I understand from reading the posts that shipping costs would be actually about $3.00. The packaging, addressing and labour involved to address the DVD package I'm guess maybe a dollar or two? So it leaves about $3 to $4 dollars to somehow make or buy the product and have a profit margin.

Movies are copyrighted. I would of thought that if these were made illegally, that by now the seller would be in court as he is selling this in a very public area. So I would suspect that he actually is getting them legally. How he could get the Movie for this price is amazing.

The actual cost of a blank DVD would be (I'm guessing again) say 50 cents plus the photo of the DVD and the time to place the ebay ad, paying the ebay fee (reduced to 20 cents?), etc, etc

Is this guy actually making any money doing this?

In Australia, prices can be expensive when compared to USA prices. Walmarts have given Americans products produced overseas to the USA market at really low prices compared to the rest of the world. So my question is this... How much would you pay for this movie Classic "Little Nicky"? LOL

What you say here is about the same in Australia. You here of very few small fish being caught and in fact you here of a lot of copyright infringements for personal use or to share among friends. I was not until recently that laws were passed to allow "backups" of CD's and DVD's and use use the good old VCR to tape TV shows for private use.

The big problem for copyright laws is the influx of material from Asia.

I have been looking at fraud today and there are a few basic common law principles that would apply in this case.

The first it is a basic common law principle that fraud can not be ruled in instances where the alleged fraud is clearly advertised and the party to the fraud takes no action. Assuming ebay has taken no action or chosen to ignore it no fraud can possibly have taken place. This even applies where the the party to the alledged "fraud" does not even know about it and the alledged "fraud" but it is publicly advertised for extended periods.

The second issue is where it can be shown other people have "committed" a similar "offence" to the alleged "fraudster" and the party to the fraud takes no action to the parties committing the similar "offence" then no action can be taken to the alleged party committing the "fraud".

In other words assuming this guy has been listing similar auctions for a considerable amount of time and ebay have done nothing about it then no fraud has taken place. Secondly if the guy can prove other sellers do the same thing and ebay have done nothing about them (which if you troll ebay you will find this is the case) then this guy has the legal right to keep doing what he is doing under common law principles.

This of cause would only apply where there is no statute over riding this. Under Aussie law there is no statute over riding the arguement here and from what I can see there is no US statute either so common law would apply here. So DVD man by the look of it has committed no fraud if no statute over riding common law exists. Even then you have to ask what juristiction ebay come under as common sense says that if you can not nail ebay under US or Aussie or what ever law because of their use of off shore companies then they can not do anything legally against a seller because of the same principle. It would only be ebays enforcement of their user agreement by striking a seller off ebay that would work here.

I agree that cheap copies are a huge problem...both in USA and Aussie land...and from what I can gather Europe as well. I do not know about it not being illegal in Asia...as from what I can gather it is illegal (from what I have heard based on Aussie trade agreements with Asian countries) but the law in Asia does not have the resources to inforce jack so it basically goes undetected or uninforced. This is also the case with many East block counties in Europe and Africa (if we do not talk about strictly coins). It is always well and good having laws that prevent this activity but unless enforcement is present what good are laws.

nds76 - I absolutely agree with your position that absent any attempt at enforcement a violation of a contractual arrangement is WRONG. However, that defense is not applicable to this case.

Bigfella - It is great to see that you are starting to do your homework on the actual content of the law that applies to the case. I presume by the tone and tenor of your defense of DVD man that you accept as already proven the fact that he has violated the spirit and letter of the ebay contractual agreement by his actions. Otherwise, the failure of uniform enforcement would not be applicable and the defense would have been mounted expressely on the basis of the contractual terms and the facts at hand. A technical defense of this nature normally starts from a stipulation of the facts of the case. Would you so stipulate that DVD man has clearly avoided payment of appropriate fees which is a violation of the ebay agreement that he assented to?

Your point regarding the "Common Law" is well taken providing the court of competent jurisdiction is located within a setting governed by the principles of Common Law. In this case however, ebay enters into a contract with all users that is enforceable in Santa Clara County, California. If you know anything about the US, you will immediately recognize California as one of the MOST progressive jurisdictions in the Country. They are noted for activist judges. All terms regarding sales are actually pursuant to - the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) and of course other rules and regulations of the State of California as well as overarching laws of the US with regards to fraud. So regardless of where the seller and buyer are located - the agreement with ebay is enforceable as stipulated. For reference see ebay user agreement as follows:

Law and Forum for Disputes - This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against ebay must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

So both parties have agreed that California Laws govern.

Regarding the premise that failure to enforce gets Mr. DVD man off the hook, please refer to the ebay agreement that binds all of us when we voluntarily choose to use the ebay Venue:

In the General Section:
General
ebay Inc., is located at 2145 Hamilton Ave., San Jose, CA 95125. If you reside outside of the United States and registered on this Site, the services are offered by ebay International AG, located at Helvetiastrasse 15/17, 3005, Bern, Switzerland. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In our sole discretion, we may assign this Agreement in accordance with the Notices Section. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

These two provisions - establishment of jurisdiction and "Failure to enforce" are very common in US contracts. They nullify the "common law" defense entirely and make unequal enforcement perfectly permissable.

The simple fact that today ebay does not choose to enforce their rights under the Laws of the State of California does not preclude them from taking any action allowable under the "Agreement" at any time.

The fact that DVD man is committing a fraud against ebay does not have to be proven in court before it can be stated as a charge.

nds76 - Fee avoidance is the provable fraud between the DVD seller and ebay. There is a possibility that the DVD's themselves are not legal copies which would be a secondary issue and fraud whose target was the manufacturer and the buyer. They are related only in that one seller links the two issues. One topic emerged from the discussion of the first.

Big business,fraud about the same thing thats who really runs my country which I am not proud of

I was following this thread until I got turned off by the anti-capitalistic rants (note: it's not ok to lie, cheat, and steal--even if the only one you think you're hurting is someone with a lot more money than you).

Back on topic: I think ebay may actually encourage the practice of inflated s/h fees, which consequently suppress auction prices.

My first reason for saying so is economic. As has been pointed out many times, ebay only charges a back-end fee on the price, not the s&h. But it's not exactly clear why; they certainly could charge a percentage on the total price. But instead they provide an incentive to shift as much as possible of the total price to s&h.

Another equally important factor is the front-end fee structure. They charge a larger insertion fee if the seller specifies a start price or reserve price than if they start the auction at less than a dollar. Sellers want to avoid reserve prices and minimum-specified auctions because buyers don't respond well to these and also, presumably, to save the 15 cents to $1 (for auctions $1 to $50).

My second reason is psychological. Real story: I was reviewing my ebay purchases, for which ebay says I paid a total of $319. But that's just purchase price and I couldn't find any way for ebay to tally up my total billed prices (if you know a way, please share). And because of the many billing options, there was no way for me to use pay pal or my credit card to add 'em all up. So I made a spreadsheet and was surprised to find out that my $319 in purchases really cost me $479. I had to swallow hard, because there is a fair difference between the two numbers. If ebay had been reporting to me my real cost rather than just the sales total, I may have stopped a lot earlier--thus depriving them of revenue.

Perhaps we should all forswear auctions with inflated s&h.

Just my 1864 2c piece.