IP: US based industry group settles action with German seller of grey-imports

The SIIA has launched its first case outside the USA, targeting a businessman who bought genuine copies of Adobe software, transported them to Germany and sold them using eBay.

Repeat: he bought and resold genuine copies of Adobe software. He resold them in their original, sealed, packaging. Customers got exactly what they thought they were getting. Adobe got exactly the price the expected for the product in the market where they were sold. The man, for his efforts, made a profit.

Adobe did not get the price they would have got if the product had been sold by them in Germany and it was sold outside their authorised distribution chain.

So, what did the man do wrong? According to the SIIA "The defendant breached German copyright and trademark law by purchasing several hundred authentic Adobe products, importing them to Germany without Adobe's consent and selling them on eBay" In the last days of Hong Kong's British rule, the USA strong-armed the then administration into passing a similar law to prevent product sold cheaply in China being imported and resold in Hong Kong where prices were much higher.

The SIIA calls the businessman "a pirate." That is patent nonsense. He did not make illegal copies of the software nor, even, of its packaging. By branding him in this way he is marked as having done something closely aligned to organised crime. Even though the SIIA says his name is to be kept confidential as part of the settlement, there is "an action" and therefore anyone doing court searches will be able to discover the names of the parties. After all, the SIIA has released details of the Court in which the action was commenced.

The language of the SIIA is over-the-top: "This is the first shot in what is a significant new campaign to address international software piracy," said Keith Kupferschmid, Senior Vice President of Intellectual Property Policy & Enforcement for SIIA. "In the U.S., SIIA's anti-piracy campaign has led to large settlements, convictions and even jail time. We are replicating this effort in Europe – so that if you sell illegal software on either continent, you are risking investigation and prosecution."

"SIIA's goal is to stop the sale of illegal software and teach all sellers to make certain they are dealing only in legal software," continued Kupferschmid. "As this settlement demonstrates, it is both a crime to create counterfeit software and a crime to sell authentic software without authorisation. Our campaign will continue to educate, investigate, and bring legal action to protect software companies and consumers around the globe."

Actually, that's not entirely true: the rules on importing and reselling differ from country to country. Record companies have been trying to force UK based resellers of far eastern manufactured product out of business for several years but have so far failed to do so. And English courts are less sympathetic with those who want to exploit UK consumers by charging them higher prices than are charged in other countries for the same product.

SIIA says that, during the last three years, it has filed more than 100 lawsuits in the U.S. against illegal eBay sellers as well as sellers on other websites dealing in counterfeit, OEM, academic, and other illegal software. Many defendants have paid thousands of dollars in damages, and, in some cases, criminal charges were pursued and defendants sentenced to jail. SIIA has also successfully tracked and sued the upstream sources of these products.

It's that term "illegal" that's bugging us.

"The defendant (whose name cannot be revealed due to the settlement terms), paid a five-figure sum to cover damages and agreed to stop selling the unauthorised software. The case was filed before the Court of Justice in Frankfurt am Main," says SIIA.

Oh, and despite the repeated use of the term "illegal," the case was filed in a civil, not criminal court.