An SIIA lawsuit would likely focus on copyright infringement instead of trademark infringement, unlike the Tiffany case, and there's a more established track record of secondary copyright infringement lawsuits, Kupferschmid said. Trade groups representing the U.S. music and movie industries successfully sued peer-to-peer services Grokster and Morpheus in a case that ended up with the U.S. Supreme Court in 2005, and the music industry was successful in its attempt to shut down the original Napster music-sharing service.
The Digital Millennium Copyright Act (DMCA) of 1998 and other copyright law sets out strong standards for secondary copyright infringement, Kupferschmid said. U.S. copyright law allows lawsuits for vicarious infringement, when the defendant has the ability to stop infringing activity and has a direct financial interest in the infringement.
The SIIA has asked eBay to end all one-day and buy-it-now auctions of software, and the group has asked to buy a banner ad on eBay aimed at educating consumers about software piracy. EBay has so far rejected both of those ideas, but it has recently told SIIA it is reconsidering some of the trade group's suggestions, Kupferschmid said.
Ending buy-it-now and one-day auctions would allow SIIA to better track software sales on eBay, he said. SIIA has several staff members and a proprietary software program that attempt to flag infringing software on eBay.
Ending short-term auctions on software "would go a long way toward addressing most of our concerns," Kupferschmid said. "Until they actually do what we're requesting them to do, I still consider it a rejections."
This year, the SIIA has filed 32 lawsuits against eBay sellers accused of marketing counterfeit software. This week, an Oregon man was sentenced to four years in prison for identity theft and for selling counterfeit software on eBay, after the SIIA complained about him.
EBay applauded the prison sentence for the Oregon seller. "We don't want counterfeiters to be on the site any more than our buyers and sellers do," Sharpe said.