The Software & Information Industry Association (SIIA) is considering suing eBay, it revealed last week. Keith Kupferschmid, SIIA's SVP for Intellectual Property Policy and Enforcement, said, "We have discussed the possibility of suing eBay for copyright infringement on behalf of our members for the rampant software piracy taking place on the site. No formal decision has been made but the discussion has and will continue to take place with our members and internally within SIIA unless and until eBay takes more proactive, preemptory steps to address the problem."

Kupferschmid said the SIIA has done studies that show 75% of the software auctions on eBay are a 1-day, 3-day or Buy It Now (BIN) auction, and has requested eBay get rid of those formats. "In the case of people selling pirated software, the longer they're out there, the greater the chance that A, we will find them, and B, we will pull their auctions."

"We acknowledge that it is our responsibility as copyright owners to police for piracy and infringement. But when the auctions are Buy Now or 1-day auctions, it's virtually impossible to get those auctions before a sale is consummated."

eBay spokesperson Catherine England said on Monday that eBay has already banned sellers from listing 1-day, 3-day and BIN auctions for luxury goods, and is currently rolling out the same restriction in the software category. She said eBay can't comment on the SIIA's intentions, but was disappointed to learn it may initiate legal proceedings. She said the two organizations have had a collaborative relationship for many years.

Kuperferschmid said the SIIA has also asked eBay to indicate on sellers' feedback whether a copyright owner or software publisher has asked eBay to take down one of those sellers' listings, saying that "has to do more with consumer protection than protecting the software industry."

He also said it's very easy for people to get back on the site if eBay takes them down.

Asked if eBay was profiting from pirated software sales on its site, Kuperferschmid said definitely. "But I want to be clear here. When we notify eBay of a listing of pirated software, they will take it down, and they will take it down very quickly and effectively. So when you notify eBay of a problem, they have been very responsive."

But, he said, the SIIA can only monitor and investigate so many auctions. "If we do notify of them of a listing, they will reinvert the listing fee to the person whose listing was thrown off - basically the software pirate. So eBay is not making money off that listing. However, because we can't get through all the pirated software listings on eBay, there's a large sum of listings that do remain up and do get consummated in a sale, and eBay does retain that money. So eBay is making money off of anything we don't catch, basically. "

eBay's England said eBay has been devoting resources to fighting counterfeiting, and the company has a variety of proprietary technology tools that identifies if a suspended seller attempts to come back onto the site, adding that eBay's team is "very good at connecting the dots." She said last year, eBay suspended 50,000 sellers of counterfeit goods from the site, and blocked 40,000 previously suspended sellers from coming back.

She said with 7 million new listings coming on to eBay globally each day, eBay looks to collaborate with the SIIA and other organizations and rights holders. "They have the expertise needed to help us identify counterfeit items so we can work together to keep them off of eBay."

Regarding the SIIA's request for eBay to add a notation to sellers' feedback if they had received a takedown request from an IP rights-holder, England said eBay works with organizations and takes suggestions, but said eBay must balance those suggestions with the marketplace and its users. "Changes to feedback are sensitive. Before we consider making a change, we must measure the potential impact on the community as a whole. The (SIIA proposal) is a broad sweeping change."

Kuperferschmid said software piracy is a big problem on Amazon, iOffer and Craigslist and other sites as well. But eBay is the biggest and has the biggest problem, he said.

Referring to the Tiffany counterfeiting lawsuit that eBay recently won, Kupferschmid said, "We do not consider the Tiffany case to be a roadblock here because (1) the decision will be appealed, and (2) we would be suing under copyright, not trademark, law and the standards for determining liability would be different and more established."

The SIIA has been aggressive in going after online software pirates and announced last week a case it had initiated that resulted in an eBay seller receiving a 4-year prison sentence.