According to an AB post yesterday afternoon, under the revised agreement:

• Buyers and sellers shall work in good faith during the resolution process to determine that the item is not counterfeit.
• If buyer and seller cannot determine that the item is not counterfeit, buyers are required to send the item back to the seller. Cost of return shipping will be paid by the buyer or eBay, unless both buyer and seller have agreed otherwise.
• Covered claims that meet the conditions and are not excluded will count as a violation by the seller of our prohibited and infringing items policy.
• If eBay determines the buyer is not acting in good faith, eBay may restrict or eliminate their ability to return items or make future claims.
• Sellers shall not list, advertise, or cause that item to appear for sale, barter or trade, on any eBay Inc. web site or service.

The new User Agreement is effective immediately for new members registering on or after today, and on June 14, 2009, for current members.

Given the less than definitive “he said / she said” checks and balances that have to be conducted in cases like this, it has obviously received mixed reviews. It’s my understanding, however, that due to the guiding principles of the Digital Millennium Copyright Act (DMCA) that any 3rd party site, such as eBay, although not responsible for the sale of counterfeit goods on its site, does have a responsibility to remove items once identified as counterfeit.

It’s for these same reasons that eBay instituted the Verified Rights Owner (VeRO) program to begin with.

So it strikes me as a tough position to be in, for everyone. It doesn’t look good for eBay if they allow the seller to continue to sell items that have been alleged to be counterfeit. It’s also a tough pill to swallow for sellers if eBay requires buyers to destroy items that could be legitimate but for a buyer trying to game the system. And it’s no fun for an upstanding buyer, when they actually receive a counterfeit item and then have to determine what to do next; destroy, authenticate (and if so, where?), or send back to the seller.

As Scott Shipman said in his post yesterday to the Announcement Board:

These revisions to the user agreement are being made to:
* Provide sellers protections against inaccurate counterfeit claims.
* Provide buyers assurances about the authenticity of the item received.
* Maintain integrity of the eBay marketplace.

Scott’s been at eBay for 11 years so I have to think that he’s got some experience in guiding the business to strike the right balance.

Cheers,
RBH