On Friday June 9th, the Scott Boras Corporation used eBay's VeRO program to terminate one of my auctions.

This is the takedown (TKO) notice:

From: ended@ebay.com
Date: Fri Jun 09 23:05:42 CDT 2006
To: owenandemma@verizon.net
Subject: eBay Listing Removed: Right of Publicity (=IS &12361 JM11522706
)

Date: Fri, 09 Jun 2006 21:05:42 PDT

Dear owen*and*emma,

Thank you for your recent auction-style listing on eBay. Unfortunately, we removed the following item(s):

4892889618 - DAMON SUCKS onesie BOUTIQUE Custom YANKEES SOX HATE

because Scott Boras Corporation reported it to us for violating their intellectual property rights. When eBay is notified by a rights owner of an intellectual property rights infringement, eBay must remove the item in order to meet certain legal requirements.

The following information may help explain the reason for your listing(s) removal:

eBay prohibits some types of material that use celebrity names or images. In some cases these items are also prohibited by law. Collections of photographs and images of celebrities often involve both intellectual property rights (like copyrights) and rights of publicity (a person's right to control commercial use of his or her image, likeness, etc.). eBay members must be certain that their postings comply with third party copyrights and/or rights of publicity.

A celebrity or their representative has notified eBay that this item violates their right of publicity (a person's right to control commercial exploitation of his or her image or likeness). Rights of publicity are a kind of intellectual property. When eBay is notified by an intellectual property rights owner of an intellectual property rights violation, eBay removes the posting in order to meet certain legal requirements. Please check with the celebrity or their representative if you have any questions about their claim.

For more information on Right of Publicity visit the following Help page:

http://pages.ebay.com/help/confidence/vero-rights-owner.html

To review a tutorial pertaining to this policy, please visit the link below:

http://pages.ebay.com/help/tutorial/verotutorial/intro.html

Questions about the specific violation should be addressed to Scott Boras Corporation at the following email address: XXXX@borascorp.com

Your eBay fees for this item have been credited to your account. All bidders on this item have been notified of its cancellation.

IMPORTANT NOTICE: Repeated violations of this or other eBay policies may result in the suspension of your account.

eBay understands that it can be frustrating to have a listing removed. If you have further questions, you can take the following steps:

Take eBay's brief tutorial on Intellectual Property Policies and VeRO Read the ended listings FAQ at http://pages.ebay.com/help/confidence/vero-removed-listing.html Ask eBay a question using the link on the above help page

Thank you in advance for your cooperation.

Regards,

eBay Trust & Safety

Once I had calmed down enough, I consulted with a lawyer friend. His immediate reaction was to ask if I was kidding. Once I explained that this was for real, his first impression was that Scott Boras didn't have a legitimate claim. However, since his area of expertise isn't Intellectual Property Rights, he wanted me to consult an expert in the field.

In the meantime, I also immediately consulted with an eBay seller who has become rather well known for fighting false VeRo takedowns. I visited and read her entire website, www.tabberone.com, and I dropped her an email explaining my current dilemma. She suggested that I email Scott Boras to clarify the exact reason for the takedown.

I emailed the Boras Corporation on Saturday June 10th, Sunday June 11th, and three times on Monday June 12th. All of my emails were ignored.

On Monday June 12th, I consulted with two Boston law firms who specialize in Intellectual Property. Both agreed that Scott Boras overstepped his bounds and had no legitimate claim against me. One even offered to take the case for free, for "giggles" he said, I figure he must be a Red Sox fan *wink*.

On Monday June 12th, I also pulled the WHOIS information for the email address provided in the TKO, just to confirm that it was actually the Boras Corporation who pulled my item (one of the lawyers from Boston was positive it must have been an impostor, as he couldn't believe Boras would be that STOOPID). Unfortunately, he was wrong and it was indeed the Boras Corporation who pulled my item. Upon confirmation, I picked up the phone and called the Boras Corporation and asked to speak with whomever was in charge of taking down my item. I was told the man's name was Ryan Lubner, but I was not allowed to have his phone number or direct email address. (HMMMM, OK? Hard to get is my favorite game, how did he know?)

At this point I was beginning to get annoyed as I really felt that if the Boras Corporation could take down an item after business hours on a Friday (8:05 PM PST), then they should be prepared to answer questions right away. I was getting a rather big headache, when a glimmer of hope appeared in my email box. Karen, of www.tabberone.com had forwarded my email on to a lovely gentleman at the Public Citizens Litigation Group. Greg Back is very familiar with the eBay VeRo process and has been working to stop companies from abusing the VeRo system. He is also an expert at First Amendment Rights.

Greg explained to me that the Boras Corporation did overstep their boundaries and should never, ever have taken my item down. The First Amendment protects my right to critically comment on or parody a celebrity.... and yes, I think Damon Sucks. What he did to Boston was the biggest betrayal in baseball and he knows it.

Greg also pointed me to case law on the subject, Cardtoons v. MLBPA and gave me a brief explanation of the case, which I later read in full:

I think the case closest on point to your situation is the Cardtoons case. Cardtoons makes parody trading cards with caricatures of Major League Baseball players along with critical commentary. MLB sent a cease-and-desist letter, and Cardtoons sued for a declaratory judgment. The court held that even though the cards ran afoul of the Oklahoma right of publicity statute, they were protected by the First Amendment. The court wrote that "the cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball. While not core political speech (the cards do not, for example, adopt a position on the Ken Griffey, Jr., for President campaign), this type of commentary on an important social institution constitutes protected expression." MLB argued that the cards should not be protected because Cardtoons was selling them for a profit. In response to this, the court wrote, "we see no principled distinction between speech and merchandise that informs our First Amendment analysis. The fact that expressive materials are sold neither renders the speech unprotected, nor alters the level of protection under the First Amendment. Cardtoons need not give away its trading cards in order to bring them within the ambit of the First Amendment."

I would also like to point out that during this time, I began to email eBay for help. eBay does not provide a counternotice to sellers who are victims of VeRo abuse. The do not have the counternotice anywhere on the site. I have received no help from eBay, only canned responses to my emails and still have not received a counternotice from them (as of Friday, June 16th). I believe eBay's actions to be almost as egregious as Boras's, I say almost because I can respect and understand their need to protect themselves. However, I would like to point out that the DMCA requires eBay to take down an illegal item to avoid a lawsuit, it does not require eBay to take down a 100% legal item because someone decided to over-step their bounds and tried to bully a seller. I hope that as eBay grows they can understand the difference and become much more aggressive in ferreting out valid complaints and completely frivolous complaints (such as this one).

Tuesday, June 13th ... For the FIFTH, yes FIFTH time, I email the Boras Corporation. After a few hours of silence, I pick up the phone and once again call, asking to speak with the person who created this mess. Once again I am denied, but at this point Mr. Lubner must have realized that I am not going away (I'm rather tenacious like that), within just a few minutes he sent an email asking for a phone conversation.

A phone call did occur and while Mr. Lubner and I continue to disagree about the propriety of the original VeRo notice, we did come to a compromise. Part of that compromise is that eBay remove this completely inane VeRo complaint from my record and in return I will make some adjustments to my listing.

Please note, I agreed to a compromise not because I felt my item was infringing in any, way, shape, or form, but rather because I prefer not to have a long drawn out ordeal in court. I just want to sell my widgets and raise my children, while at the same time expressing my beliefs and opinions through my work.

At this point, I am going to put the story on hold as I am awaiting to see if eBay has recinded the takedown as Mr. Lubner and I agreed to. Mr. Lubner sent eBay an email on June 13th, immediately after our discussion stating:

The seller and I continue to disagree regarding the propriety of the original VeRO notice, but it is a good-faith dispute. For that reason, please remove any negative consequences resulting from the original VeRO claim from the seller's eBay record......

and my personal favorite:

the seller is the sort of passionate eBay user that eBay should seek to cultivate. Thus I do not expect any further issues regarding this item.

As of this morning (Friday June 16th) I have only received canned responses from eBay, no counternotice and no confirmation that the VeRo TKO has been wiped clean from my record.

If eBay does not remove the complaint from my record, my compromise with the Boras Corporation is null and void and I will be forced to bring this case to court. Something I really do not think Mr. Damon wants to occur. I can already see the headlines in the Boston Herald "$52 million crybaby upset that stay at home mommy says he sucks". *sigh* I think he throws like a girl too, so what?

By the way, that quote up there was REALLY said by Mr. Lubner. How absurdly silly is it that Damon can't understand the critical comments directed at him?

Do you need a copy of the ever so elusive eBAy Counter Notice? You may download one HERE Don't bother trying to get eBay to send you one, you have a better chance of catching a unicorn. Trust me, I know.