Several times eBay has been accused of facilitating trade in counterfeit products, illegal sale of restricted products, "electronic pimp", and now some fake and real Blue Peter badge are been sold there. The usual defense that eBay uses is stated in their user agreement and reads: "eBay is Only a Venue" and then goes explaining that they are not what they are supposed to be. (section 3 of the User Agreement) . But I think that that defense is running out of steam. eBay collects a fee for every item posted and then a percentage of the final sale, which makes them more than a simple venue, and for the same reason clearly the status of information service provider that provides a mere conduit, caching or hosting does not apply to it (see The Electronic Commerce (EC Directive) Regulations 2002, regs. 17, 18 &19).
We've seen some years where courts have applied, changed and twisted jurisprudence to suit the big corporations that are in the forefront of the digital economy and it seems that those old newly-created legal principles are starting to hunt the same businesses that were supposed to protect. Are we going to see any serious court action on the matter, or the old newly-created principle that states that "one infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it" (MGM v. Grokster) will be bent again to suit the big boys?