(originally posted late 2003)
It starts with Duane Rossignol, one of the more obsessive collectors I've ever met (and trust me, that's saying a lot). I don't just mean driven or dedicated, I mean clinical must-have-everything, can't-stop-myself compulsion. Duane ran a record store in New York City called Some Records circa 1985 - 1988. Before, during, and after the years running the store, Duane amassed an amazing punk collection. He mail-ordered hundreds of punk releases in the late 70's and early 80's. He bought every fanzine. While running Some Records, Duane hoarded dozens of copies of new releases and tucked them away at his house in White Plains. No flier put up at Some ever went into the trash. Duane kept EVERYTHING even down to the mailers new records arrived in. After a few short years, Duane had put together one of the most extensive collections of straight edge punk releases ever glimpsed. The straight-edgers were a collector geek crew, and Duane proved himself the emperor of all collector geeks. Even more impressive was Duane's recollection for every little detail of the New York hardcore scene whether it was ever-changing band line-ups or how many different colors were used for a gig flier or how to differentiate records with multiple pressings. Duane knew all the New York hardcore kids from that time... they were his customer base at Some Records. He knew the people, the music, and the minutia of anything and everything NYHC. Fast forward to 2003 when many of the items Duane owned had become highly sought-after punk collectibles to the tune of thousands of dollars. After getting himself into a financial crunch, Duane began selling bits and pieces directly to collectors (myself included). Duane eventually began consigning records with me and Charles Maggio to sell on eBay. Many of these were highly sought-after releases on the Revelation label. The auctions went well and Duane soon saw his monstrous stash of records as a way out of a daunting debt that he'd accumulated. Soon, Duane decided that he should be on eBay doing the selling himself instead of losing a cut of every sale. He got a computer and scanner and a cottage industry was born. In no time flat, eBay seller 31OUD was listing dozens of items with descriptions so extensive that other collectors copied the auction text for reference materials!
II. The Cassettes
Among the most unique items in Duane's collection were dozens of rare punk cassettes. After endless listings of vinyl, the cassette's time had come. It was February 2003. Many of these cassettes ("demos") were the very first recordings released by the band. Often the recordings contained on these demos never made it onto any future releases. Cassettes were a cheap and easy way for a band to get their music out there. Most of these cassettes were primitive affairs often made on cheap generic cassettes dubbed at home by the band. Covers were run off at the copy shop and cut by hand. DIY ("do it yourself") indeed, though some established bands had cassettes professionally printed. Area bands flooded Some Records with such tapes along with gig fliers, vinyl releases, and hand silkscreened shirts. Almost every New York hardcore band from the mid-80's put out a cassette. It was almost a right of passage. The beauty of the medium was that the cassettes could be made in small batches and on demand. If the shop sold out, a band simply made 10 more and brought 'em in. Bands could use the money from cassette sales to roll into a vinyl release, something more permanent and "serious" that could be reviewed by magazines. As with everything else, Duane kept a few of each demo brought in by the bands and, unlike the fate of most cassettes which were tossed or destroyed or played to death by people who bought them, all of Duane's demos were kept in immaculate condition. When these demos began being listed on eBay, hardcore collectors flocked and shelled out handsomely. The provenance and ephemera provided with the cassettes (Duane almost always included an original flier or a note from the band or something extra in the auction) drove collectors to spend unreal amounts of money. Here were perfect condition cassettes that were unquestionably original and painfully rare. And soon enough eBay began shutting the auctions down.
The first item to get shut down was Guillotine Magazine's benefit cassette (1985). It was recorded Live at CBGB's and bands included Antichrist Newsboys, Leeway, Token Entry, Skinhead Youth, Good humor, Nevermore, Mental Abuse, Disorderly Conduct, Krieg Kopf, Murphy's Law, and Ultraviolience. This cassette, like all the cassettes Duane listed, were brought into Some Records by the bands to be sold. In other words, these weren't the type of "demos" sent to a label for release consideration... these were fully authorized commercial releases made to be sold at retail shops and at gigs. Duane not only had NO interest in pushing bootleg items (be it a cassette or a record or a T-shirt), selling unauthorized merchandise would have been IMPOSSIBLE for him to get away with. This was a tight-knit scene and band members made up much of Duane's customer base.
When eBay shut the first auction down, Duane was incredulous. He wrote a long, thoughtful explanation to eBay regarding the cassettes. Obviously a mistake had been made. After all, these cassettes were crude and might easily be mistaken for bootlegs. It was a simple misunderstanding. Duane received an auto-reply saying that his case had been thoroughly reviewed and that if he had any questions, simply consult eBay rules namely those concerning Copyright and Recordable Media. Duane decided not to re-list the items that were shut down. Instead, he moved on down the alphabet and listed some different cassettes: Brute Force, Cromags, Cryptick, Cryptic Slaughter, Deathrash, Dirge, Doc Marten. With this batch, the brother of a Deathrash member even wrote to Duane expressing jubilation over the opportunity to get the cassette back after losing his copy years ago! Do you think the guy would be happy if the listing appeared to be a pirated cassette of his brother's band? No way, but such testimonials mean nothing to Safe Harbor and once again the auctions were shut down. And once again, Duane wrote back explaining that every single one of the cassettes was legitimate and made for sale and resale at his store. Safe Harbor then re-sent the same canned response referring Duane to the Potentially Infringing Item rules. At this point, Duane felt "targeted", and he was almost certainly right.
In spite of two separate batches of auction endings, Duane listed more cassettes. And with this "third strike", 31OUD was indefinitely suspended from eBay. Was listing a third time just "asking for it"? Safe Harbor would say "yes", the seller got what he deserved after multiple warnings. But when such warnings are vague assertions based on an inscrutable policy concerning items that the seller positively KNOWS to be legitimate, how can that be "asking for it"? Does a seller with a rating over 700 (and not a single negative feedback) and no other means of income sound like someone looking for trouble? Fuck NO. In one of its Help sections, eBay has the audacity to state: "Before taking any action, eBay will consider the circumstances of the alleged offense and the member's trading record. Disciplinary action may range from a formal warning, up to indefinite suspension of a member's account. However, we do not take action on every report filed by our users, only those where we can prove with certainty that a violation was committed." It's sadly and abundantly clear that Safe Harbor neither considered Duane's history as an eBay seller nor had any shred of proof that a violation had been committed. Does "potentially infringing" sound "certain" to you?
IV. Little Brothers
eBay never reveals any information about their investigations. Period. Full stop. It is, however, painfully obvious that Safe Harbor relies heavily on self-appointed "community policeman" to report "problem items". The truth is that aside from rudimentary word searches (e.g. fuck, shit, promo, pussy), eBay doesn't seem to scrutinize listings. Without Little Brothers, many prohibited items would otherwise run their course on eBay. Any person with a grudge, be it personal or professional or ideological, may simply report unfounded violations and ostensibly have every claim taken at face value and may do so with absolutely no verification or repercussions. And once a seller is reported, he/she is immediately under the microscope.
If a "potentially infringing" item is reported to Safe Harbor by a VeRO (Verified Rights Owner program) member, the item is automatically shut down. So how does one get to be a VeRO member and enjoy that kind of muscle on eBay? Sign a form stating your "good faith belief that a listing on eBay infringes your copyright, trademark, or other intellectual property rights" and fax it in. Voila! You're now a VeRO member and from here on out a simple e-mail shuts down any Entertainment auction of your choosing. Despite the ease, only 5000 individuals or organizations have bothered to join VeRO. While regular eBay users don't get to enjoy the "no questions asked" immediate shutdown priority that VeRO users do, Safe Harbor aims to please with its "one question asked" policy for regular tipsters: does the item suggest the possibility of being illegitimate (blank labels, homemade appearance)? If it does, end the listing. eBay's fear of litigation and a pandering to the likes of the RIAA (Recording Industry Association of America) has taken the uber-corporate CYA ("cover your ass") approach to new lows. It's much easier to end auctions that might be a problem than actually find out the truth one way or another. As part of this CYA philosophy and as a matter of practicality, eBay presumes guilt. Such a presumption is understandable even forgiveable until one realizes that eBay offers no venue for a seller to defend himself. Oh sure, eBay's now added a Help page titled: "What if I disagree with the ending of my listing by eBay?" Mark my words, the same canned responses touting items having been "fully investigated by Safe Harbor and found to be potentially infringing" await you. I'm sure they'll tell you to read the rules again, too.
V. Recordable Media
eBay's Recordable Media policy is typical of many eBay policies in that it is, at times, specific and sensible and, at others, completely wide open and illogical. eBay policy states that sellers may not list "CD-Rs, DVD-Rs, or any other forms of recordable media on eBay unless they are blank." Unlike records or CD's, cassettes are by their very nature "recordable media". Audio tape can ALWAYS be recorded over. Cassettes are a recordable medium and therefore by their very nature seemingly prohibited from being listed on eBay. But, of course, that's not the case... eBay provides a Cassette category that has well over 10,000 current listings at any given time. And a Reel-to-Reel category. And an 8-track category. And yet eBay will cite the Recordable Media policy and exploit its own lack of specificity to shut down sellers offering legimate, band-produced cassette-only releases. Consider this example of a violation:
on CD-R, because it violates eBay's Recordable Media policy.
So does the same go for a cassette released by a band in 1985 and purchased at their gig? If we want to get technical about recordable media, what about a 45rpm acetate purchased from a label owner? eBay would never deign to answer such questions. Maybe your auction will get shut down, maybe it won't... Part of the problem presumably lies in eBay enforcers' ignorance of a genre (that is, punk and DIY — "do it yourself", get it?) which doesn't provide glossy, full-color covers or fifteen lines of publishing and copyright details with each cassette. Independently released cassettes can — to the untrained eye — appear to be nothing more than a blank tape made on a home stereo instead of a legitimate commercial production made for retail sale like any major label release. This complex concept seems to short-circuit the feeble minds at work in eBay's Safe Harbor. If you work at Safe Harbor or are otherwise mentally challenged, look at the pretty picture below and see if your answer matches with the one I propose below.
The one on the left is a Rolling Stones cassette (you may have heard them), the one on the right is a Kicks cassette (yeah, right). The one on the left was released by Decca Records and sold several hundred thousand copies. The one on the right was released by Shake Records and sold several copies. The answer is NO. And yet, if both were reported as Potentially Infringing, you can bet the Kicks cassette would be shut down.
VI. Into The Fray
I had, on at least one occasion, had an auction shut down. I'd listed several master tapes which I purchased from the founder of a late 70's punk label. As the tapes were just taking up space after awhile, I decided I would list them on eBay. The first couple ended with no problems. When I listed an Avengers master tape, the listing was ended as "potentially infringing". I immediately re-listed the item with a lengthy preface about my rights to sell the master tape as a collector's item and that no rights to reproduction were given with the sale. I had no further problems with the listing. With this in mind, I felt that perhaps part of the problem with Duane's listings was that they didn't have enough of a "pre-emptive strike" aspect to them. In other words, maybe the listings needed to address perceived "infringement" in order to head off problems before they occurred. If one of the Safe Harbor martinettes could see that the seller had read and understood the Recordable Media Policy, perhaps that clarity would finally permit the auctions to run their proper course. Knowing Duane's funds were quickly drying up, I decided another stab at the listings was in order.
Of course, I anticipated the possibility, nay the likelihood, of trouble. With close to 1000 feedbacks at the time, I didn't want to jeopardize my longstanding eBay seller account. Fortunately, a cantankerous acquaintance volunteered to establish a new selling account (probably a "violation" in and of itself e.g. assisting a Previously Suspended User). Once again, the ax fell quickly. Within a month, the seller met with Duane's fate over the cassettes despite pre-emptive preambles. Some coward out there had a grudge, and eBay proved itself to be a willing enabler by providing an anonymous, repercussion-free venue for baseless claims. It's difficult not to notice the similarities between this so-called "community" that eBay fosters and a legal system where frivolous lawsuits thrive. A bitter harvest awaits eBay.
After two cassette auction closures, it was time for one final test. A bootleg reissue of a rare punk 45 by The Fix was listed. Why? This reissue, with its nice picture sleeve and labels, would appear legitimate to the untrained eye. There was really no superficial means for a layperson to distinguish this bootleg release from any number of similar legitimate reissues floating around. The Safe Harbor clowns' only means of knowing would be for someone to report the item as "potentially infringing". Sure enough, within hours the listing was ended and the bells tolled for another friend of Duane's.
VII. And so...?
And so not a damn thing. Safe Harbor and the Little Brothers intent on ending Duane's cassette auctions got their way... I guess.