E Bay Behavior

[bakeostrin]

I recently won a CD on e-bay that was listed as a "rare collector's item"

Upon receipt of the item, I noted that it was a cd-r

I did not inquire during the auction as to whether or not the CD was a cd-r (I never had made such an inquiry on e-bay). I e-mailed the seller and requested a refund. The seller responded that the CD was not a cd-r because "there never was a cd." The cd was made from a record. Further, the seller told me "how else would I get the music?" I sent a reply e-mail regarding my refund request, as the seller had not answered it in his first response. The seller has not replied to my second request. I then opened a paypal dispute.

I note that this seller has over four thousand transactions without a negative deal--a very impressive feat.

I think that my actions have been reasonable, but I have never sold anything on e-bay, only bought. So, I wonder what board members think of this transaction or how I should proceed. I would also add that I have never left negative feedback for a seller on e-bay. The few rough transactions in the system I have been able to work out.

But, if anyone has any thoughts of a contructive nature, I would appreciate it. Also, the amount involved is not large (approximately $30) so it is not that big a deal. I am somewhat surprised at the seller's reaction to my request.

It is funny, there are strange things that happen on e-bay. Appropos of a recent thread regarding the Jazz Loft, I had won a CD (Ralph Sharon Trio on Bethlehem) from Germany and the seller shipped it to me airmail on August 18, 2008. When I did not receive it after a month, the seller (Tom at Classical Fidelity) promptly refunded my costs plus shipping, with the comment that he never had seen an airmail item lost.

On January 18, 2009, the CD arrived. The address was correct and clearly written, the package was undamaged and the package was indeed sent by airmail on August 18, 2008. I then sent payment again; in the interim, I had acquired another copy of the CD and bought and received a different CD from the same seller.

So you never know. But I do contrast Tom's courtesy with the behavior of this other seller.

Regards,

Baker

[Guest Bill Barton]

I feel for ya...

That's definitely false advertising. No way is a CD-R copy of a rare album "a rare collector's item."

The old "let the buyer beware" saying seems to be apropos here. Generally I've had no problems with eBay purchases but it "pays" to do some research first. Can't say that I have any brilliant ideas on what to do though...

Personally I'd pursue it. It doesn't mean squat that the guy had good ratings before. Sounds to me like he's in the wrong here.

And, on my budget, $30 would be a big deal

[Dan Gould]

I am sure he has violated eBay rules for selling an unauthorized copy of an item. Personally, I'd challenge him directly on his belief that he has a right to sell a CDR of anything, and then I'd give him negative feedback, a warning to beware that he is selling CDRs, not original items, and has no right to do so.

Can you post a link to his auctions, or his username? I'd like to see some of his listings.

[papsrus]

Yep. He intentionally misrepresented the item. The excuse that it's not a CDR because there was no original CD is amusing.

[bakeostrin]

Thank you for the input.

One thing I would add, I believe that he would have the right to sell the material as a CD-R, as the seller is in Europe and I believe the material to be over 50 years old. I point this out not to say that the practice is acceptable, just that I believe it is not illegal in the country of origin.

I will hold off on posting the seller's name until I get more of resolution on the matter in order to be fair to the seller. I may be misperceiving something. Additionally, if I am not putting this together quite properly, I would want to avoid unnecessarilly injuring injuring a seller's reputation.

I am aware of the principles of caveat emptor. As a jazz book collector, I frequently encounter items listed by people who are not professionals and have ask some questions to clarify condition, edition, etc., because "nice book" is usually not specific enough. With cd's really other than flaws there is not that much to describe. I have seen some sellers warrant that they do not sell promos, cd-r's etc., but in this matter I thought the description was sufficiently specific to rely on it (of course I may be wrong).

To give another example, I once purchased on e-bay a copy of a very rare book, the original 1939 Swing Photo Album by Timme Rosenkrant (the first jazz photo book). When I opened the book, it had a price slip on the outside which read "$--- back cover missing" Of course the description did not include the fact that the back cover was missing. The seller, Jerry Ohringer's Movie Posters was experienced in dealing with paper collectibles and indeed was aware of this obvious flaw. The seller took back the item, but as many of you know, it can be a pain in the neck to repack something and take it down to the post office and ship it back. I told the seller I would not pay $15 for that item in that condition.

I see this transaction in that same light. The seller is experienced. Of course, there are those who may argue that I am an experienced buyer. It just depends on the item. If I see 78 album "The Jazz Scene" and the seller has not listed the number of photographs, I ask for a count, especially because that album was loose leaf and one can remove the photos.

Recently, someone advertised "The Astaire Story" the 4 LP set; but made no mention of the David Stone Martin prints or water colors. I e-mailed the seller on that one and he responded that those items were not in the set. I think the seller almost certainly had no idea that those items were in the set. But with the CD, I am talking about a much more simple matter (and perhaps beating it to death too much for everyone's tastes).

I welcome any other suggestions.

Regards and thanks,

Baker

[Stereojack]

If the material is over 50 years old, I don't believe that the seller is violating any copyright laws in Europe.

However, a CDR is not a CD, and he should have made that clear. If he refuses to take it back or provide you a refund, I'd make a claim against him, and if that doesn't go your way, give him a negative.

[AndrewHill]

Yeah, I asked this question in the CD-R thread concerning BN's, in the reissue forum, about whether these CD-R's were going to seep into the general market and get passed off as legit copies. It is definitely a mis-representation of the said product and the seller needs to refund your money immediately.

Edited January 30, 2009 by Holy Ghost

[Niko]

you must try to get a refund... of the 30 $, 1$ are the seller's actual costs and 29 $ are the margin he added to the price in the hope to find an idiot... unless you want to be that idiot try to get at least the 29$ back...

[Dan Gould]

That's why I am curious about the original listing - was this an auction that was bid up to $30 or a buy-it-now?

[mtodde]

There has always been a lot of that unfortunately. In the case where something was never released it is probably the only way you'd ever get it though. When I was a member at Steve Hoffman there were several controversies about whether Steve was selling CD-Rs of things that were never released; I think one went for about $3k on a forum fundraiser even.

$30 is a lot to get something other than the original and the seller certainly misrepresented the item for sale and violated some of eBay's rules & even some laws. I have found a number of fake MFSL & DCC titles for sale that were never released. I've always been interested in how they sound.

[Dan Gould]

I just submitted a complaint on eBay - some seller with nothing up but CDRs of live recordings of blues artists like Sue Foley and Anson Funderburgh. It astounds me that people have the gall to just blatantly violate the law as well as eBay rules. And yet the guy has a feedback rating over 500, and just a single buyer posted a negative, that he never said it was a CDR of a bootleg. Everyone else thinks its f-ing fantastic what he sells.

And all of them are auctions, not even buy-it-now. So he makes incredible profit if someone gets in a bidding war because they think its the only copy. I couldn't help myself - I sent a "Question" to the seller and asked him what right he has to sell these and told him he's a thief. But with 500+ feedbacks, you know that eBay won't do a damn thing about the listing.

Anyone have contact info for Anson Funderburgh, Sue Foley or Snooks Eaglin, or their management? I'd love to make sure they know, just like on Dime, eBay is supposed to respect the wishes of rights holders.

[Jazzmoose]

One thing I would add, I believe that he would have the right to sell the material as a CD-R, as the seller is in Europe and I believe the material to be over 50 years old. I point this out not to say that the practice is acceptable, just that I believe it is not illegal in the country of origin.

Not on eBay, he wouldn't. Unless they've changed the rule, selling CD-Rs is a violation of the eBay Terms of Agreement. I'd notify eBay about this. And neg the shit out of him.

[bakeostrin]

That's why I am curious about the original listing - was this an auction that was bid up to $30 or a buy-it-now?

Bid up to 20 Euros plus shipping.

I escalated the matter to a claim after receiving the following response from the seller (included in my e-mail; seller's name omitted):

[start of claim]

I had requested a refund from the seller, as is detailed in the messages section.

The seller responded as follows:

"Hello Baker,

I'm contacting you again because paypal has proposed to do it.

As said before the CD is not a CD-R because there is no original in the market. It was carefully made from the rare orignal LP. You can learn it from the white record promo sticker on the CD. I didn't describe anything wrong in my auction !!! By the way, there are very many CDs in the US market made from records . I thought you would be happy to get this rare item because there is no other chance to get it. I have sold some CDs like this and never got a complaint. See my 100% positive feedbacks !!!

I'm sorry that I can't accept your complaint.

Best regards

----

"

The item is a CD-r and so states. It was made from a record. Seller did not disclose the fact the item is a cd-r rather than a cd in the item description. It is a violation of US copyright laws to duplicate such material. Further, I believe it violates e-bay's user argreement to sell cd-r's. Additionally, the seller marketed the item as a "rare collector's item" when in fact no limit exists as to how many of these can be made (essentially on demand).

I have never seen a seller on e-bay market a CD-r as a CD. If the seller wishes to market cd-r's as CD's, seller should so state rather than stating that the item is a CD.

This item is home made "knock off" marketed as a collector's item. The seller omitted in his description that the item was a cd-r. Indeed, the description of "CD" leads one to conclude that the item is just that.

This omission is what the seller did "wrong" in his description.

[end of claim]

Thanks for the thoughtful input. If someone has a quick link to the e-bay policy regarding cd-r's and to complain to e-bay directly, I would appreciate it. If anyone has any suggestions as to anything else to add to the claim, I likewise welcome that. I would think that the copyright law permits a European sale of this material.

Regards and thanks,

Baker

[Dan Gould]

Number one, I'd respond:

Did you burn the CD? Did you use a blank CD-R to do so? Than it is a CD-R! A CD is professionally manufactured in a pressing plant through a different process.

I'd go beyond that and tell him he's a thief and a liar, but that's just me. I don't suffer people like this gladly.

But since you are escalating it to a complaint, how about sharing his user ID so that we can see his listings?

[Neal Pomea]

The collector's item is the music, not the original lp. What did you want? The music or the artifact? In this case it's the triumph of the idea over the physical. I read that kind of language about ideas being trumped by the physical on this board when the discussion was perpetual copyright.

[bakeostrin]

Seller's user ID:

gunnarhaupt

Seller sells out of Germany; item ID: 110335643078

Serves me right for branching out into Ken Colyer; note the description says that the cd is in "new condition"

[Guest Bill Barton]

That's hilarious! A CD in "new condition." Uh, right... Nowhere does it say it's a CD-R or that it's a copy in so many words.

The listing is nebulous to the extreme. Of course the translation doesn't help much either.

So, let's see, what's going to keep the guy from burning a bunch of additional copies and auctioning them off? What a racket!

Personally, I'd fight like hell to get a refund and report the guy to eBay in addition to giving him a very bad rating.

If he was in the States I'd say report him to the FTC too but that's obviously not an option in this case.

Edited January 31, 2009 by Bill Barton

[Claude]

If the material is over 50 years old, I don't believe that the seller is violating any copyright laws in Europe.

But he is violating US copyright law, by offering the item on a marketplace which largely aims at US buyers. The fact that his adress is in Europe (where the copyright has expired) does not give him the right to ignore the laws of the country where he is offering his product.

For the same reason, a US seller could not offer Nazi memorablia on Ebay Germany, although this is does not violate the law of his country of residence.

[Big Beat Steve]

Even if he were not violating any copyright laws (with the +50-year old music being P.D.), he did misrepresent the item because if he burnt a CD-R off an LP then this is not a "CD" (as pointed out here countless times before).

And even less is it a "collector's item". How can something you can make countless copies of be a "collector's item"? (Hey, if it were that easy ANYBODy with a decent laser/color photocopier and a couple of collectible original paper objects would be in the business of trading with "collectible" printed matter!!)

If he had represented the item correctly it would have had to be a legit CD reissue that for some reason is really impossible to find in this very version (release, pressing, etc), maybe because it was an extremely limited run (but pressed in a proper pressing plant, not something burnt at home through the grubby hands of some geek). But as it is it is just a case of misrepresentaiton IMHO and that would be reason enough to give him 'ell.

A CD-R burnt off a possibly collectible original LP is nothing but a token or favor done by somebody to make the music itself available to saomebody else but not something collectible (not by any stretch of the imagination) in the sense that we all have come to understand the term 2colectible" in THIS context.

Sorry, Baker, that this has happened to you from a German seller. As a German buyer I've off and on encountered U.S. ebay sellers with highly doubtful selling and description practices who clearly tried to get away on the principle that "somebody from overseas is never going to sue me and does not have a legal handle here anyway". but still it's sad to see reverse happening.

[bakeostrin]

Sorry, Baker, that this has happened to you from a German seller. As a German buyer I've off and on encountered U.S. ebay sellers with highly doubtful selling and description practices who clearly tried to get away on the principle that "somebody from overseas is never going to sue me and does not have a legal handle here anyway". but still it's sad to see reverse happening.

Thanks Steve, but my experience with overseas sellers has almost been uniformly positive. I collect rare jazz and blues books; I received countless numerous rare German ("Omniverse Sun Ra"; "Foto Jazz"; "Jazzlife"; "Jazzwelt"; "Pete Johnson Story"; the Herbert Joos books) and American ("Jazz West Coast") books just from German sellers (book dealers and e-bay). Not as many cd's, just because what I am looking for primarily are Japanese reissues, but the cd I bought from e-bay seller Classical Fidelity came from Germany. I got a prompt refund from the seller for an item that never arrived. The item did arrive five months later (properly addressed and shipped airmail at the time the seller had represented; I repaid the seller). It's about a two hundred to one ratio for me in terms of satisfactory purchases.

There is not much one can do about one small transaction, except to notify others about this seller. I'll see what happens with my dispute.

Baker

[Guest Bill Barton]

Guess I won't be ordering that "rare collectors' item" at a bargain price of The Ventures' Batman Theme anytime soon...

[Jazzmoose]

Number one, I'd respond:

Did you burn the CD? Did you use a blank CD-R to do so? Than it is a CD-R! A CD is professionally manufactured in a pressing plant through a different process.

I'd go beyond that and tell him he's a thief and a liar, but that's just me.

You left out moron, as proven convincingly by your first paragraph. This seller is a friggin' idiot.

Edited February 1, 2009 by Jazzmoose

[Jazzmoose]

The collector's item is the music, not the original lp.

Bull. the music is a "listener's item"; a "collector's item" is a collectable, which sure as hell isn't a CD-R.

[AndrewHill]

The collector's item is the music, not the original lp.

Bull. the music is a "listener's item"; a "collector's item" is a collectable, which sure as hell isn't a CD-R.

Yup. What Moose said.

Edited February 1, 2009 by Holy Ghost

[bakeostrin]

The collector's item is the music, not the original lp. What did you want? The music or the artifact? In this case it's the triumph of the idea over the physical. I read that kind of language about ideas being trumped by the physical on this board when the discussion was perpetual copyright.

I appreciate your response. I strive to achieve fairness in all my dealings and wondered what a response supporting the seller would be (I had hard time thinking of one myself).

However, I do not understand what you mean by "the triumph of the idea over the physical." I understand it to mean that you sanction the seller's behavior. The seller's behavior is unethical even if one ignores the applicability of copyright laws. Let's suppose this seller had the copyright on this music. Would it have been acceptable for him to send me a professionally made cassette rather than a CD? How about a homemade cassette? What if the seller knows a perfect Ken Colyer impersonator and the seller sends me a link enabling me to download the impersonator playing the entire album note for note? How far in your personal ethics (copyright laws aside) is it acceptable for someone to misrepresent a product? When something is a cheap knock off, it is not worth as much as an original well made item. When you are buying a cd you are buying both the medium and the music. I do not know how long this cd-r will last or whether the sound is equivalent to a CD (it may be, as I have seen in other discussions). I can see the graphics for the insert are cheaper. Whether I wanted those features and what I was willing to pay for them reflects my personal preferences. The decision also depends upon the seller's providing me with accurate information (rather than intentionally misleading me)?

Consider the following. You need some replacement brake shoes for your car. You go to the dealer and make the request for manufacturer's parts. Only the mechanic puts in some after market brake shoes (which are much cheaper, but the dealer keeps the difference). These parts are made of lesser quality materials and apt to fail quicker. Now, how would you feel if you had those parts in your car? If you want to run the risk of having those parts in your car to save some money, that may be a choice for you to make. But you need information to make the choice.

If the material is over 50 years old, I don't believe that the seller is violating any copyright laws in Europe.

But he is violating US copyright law, by offering the item on a marketplace which largely aims at US buyers. The fact that his adress is in Europe (where the copyright has expired) does not give him the right to ignore the laws of the country where he is offering his product.

For the same reason, a US seller could not offer Nazi memorablia on Ebay Germany, although this is does not violate the law of his country of residence.

That is an interesting point which further detracts from the transaction's legitimacy.

The collector's item is the music, not the original lp.

Bull. the music is a "listener's item"; a "collector's item" is a collectable, which sure as hell isn't a CD-R.

Yes. I am much too longwinded to put it that way.