back to article Teen buys WikiLeaks server for $33,000 – with dad's eBay account

The eBay auction of a server formerly used by WikiLeaks has ended with a closing bid of more than $30,000, but the 17-year-old winner will not receive his goods because he bid on the equipment using his father's eBay account without his permission. The youth, whose name has been withheld, bid eight times during the ten-day …

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I'm actually surprised that the service provider would say who had used the box; specifically for reasons like this. It just looks like a way to get into trouble. Whether it sticks or not a trademark infringement suit (profiting from the use of an unlicensed trademark is infringement) would cost more than they made from the sale. A lot more considering they're giving away the proceeds.

This may be the birth of a new standard clause in service provider contracts...

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profiting from the use of an unlicensed trademark is infringement

Only if the companies (i.e. the 'offender' and the trademark holder) operate in the same business area. As one offers hosting and the other leaks classified material, it'd be a pretty hard fight to prove trademark infringement, especially given that Banhoff weren't trading as Wikileaks, simply stating the (presumably) true fact that the server had once hosted Wikileaks.

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You Sure?

I think you may have it kind of backward: You can, for example, compare your products/services to those of an industry competitor by name "Our televisions are 3x brighter than Sony" without Sony's permission but you can't say something like "Our televisions make Arsenal come alive in your living room" without permission of Arsenal, where you would be profiting from the use of their name.

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Re: You Sure?

In fact, you may be right;

Where the registered mark has a significant reputation, infringement may also arise from the use of the same or a similar mark which, although not causing confusion, damages or takes unfair advantage of the reputation of the registered mark. This can occasionally arise from the use of the same or similar mark for goods or services which are dissimilar to those covered by the registration of the registered mark.

Courtesy of the UK IPO

The first part I was correct on though (comparisons don't really come into what I was getting at, as that's not likely to cause confusion either). My slightly tired mind is a little curious about how you could misuse " or takes unfair advantage of the reputation of the registered mark" though - if I was selling cars and ran an advert with "At least it's not a Skoda" would taking advantage of the negative reputation (OK, showing my age, they're better now) constitute infringement ;)

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Re: You Sure?

I wonder what legal jurisdiction would be in play here. It's a German seller to a Portuguese (attempted) buyer, hosted by a United States company.

I would doubt if it's legal everywhere to refer to another party by name without their consent. If it were, then why would washing powder adverts blur out the products they're comparing against, and simply refer to them as "the leading brand"?

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Anonymous Coward

If I buy a car that was used in the last Bond film and then sell it on under an advert saying "as used in Skyfall", am I infringing the trademark of the Fleming estate and EON?

No. (assuming I'm not using the 007 logo etc)

If I sell cars, similar to the ones in the film, under a big banner saying "as seen in Skyfall" am I infringing trademarks and/or other copyright?

Probably.

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Re: You Sure?

> why would washing powder adverts blur out the products they're comparing against, and simply refer to them as "the leading brand"?

Because research has shown that negative ads which name the competitor not only increases awareness among the customers that The Leading Brand is more popular (and hence more desirable) than the brand doing the commercial, but also turn off a significant proportion of customers.

As for this story, I do not believe for a second that it would be illegal for me to sell my TV by saying that it had once shown a picture of an iPad, or my radio by saing that it once played the song "Applause" by Lady Gaga.

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Happy

Re: You Sure?

A Registered Trademark is considered property. As a general rule, you can't use someone else's property without their permission. (Exceptions exist, and I'll touch on those below to answer the other posters question as well). Now, I'm not saying that their use of the Wikileaks name was infringement by abuse or unlicensed use, I'm saying that this case is ripe for a lawsuit to let the judge decide, and that would expensive; far more than $33k.

I mentioned the comparison part because it may have significant bearing in this case. You are allowed to use someone's Trademark without their permission everywhere, in a provable, factual like to like comparison: "Better than a Skoda" is subjective, what's better? "The Citroen (x) is 20% more fuel efficient than the Skoda (x)" is perfectly OK as it is a factual comparison.

The washing powder example the other poster used is a good example of subjectiveness. There aren't any standardized, factual comparisons you could make. What is whiter? What is more color safe? No aspect of such a product is testable or proveable in conditions which can be repeated by others. You could say "Brand (x) contains 35% more ethylene glycol monobutyl ether than Brand (Y)" but that doesn't carry well with focus groups. In subjective comparisons they block out only the Trademarked aspects of a package but leave the rest visible with the understanding they are not using someone else's Trademark, you are making an assumption that Brand (x) is what they are talking about, based on what is visible. In the case of the Wikileaks server they are stating fact, but is it in a way that complies with the exceptions or were they using the Wikileaks name only to add value? That's the judges decision.

This part may only be valid in the US, but I know you do have to get permission of the Trademark holder to advertise something as previously belonging to 'Trademark Owner' as it adds value to the item. Several car dealers have run into this where a 'Pristine 1967 Cadillac owned by Elvis Presley for sale, only $45,000' or whatever. If you look on eBay the listings will say 'Thing owned by famous bejeweled singer of song about hound dogs'

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Re: You Sure?

Since every UK supermarket now seems to have product comparisons that say 15p cheaper than Tesco/Morrisons/....

I guess it's OK here.

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Re: You Sure?

The issue in the UK is slander/libel laws.

American style adverts that say our product is great, and product X is shit because it can't do X, Y, Z can lead to you being in court because product X can actually do X, Y & Z. That can lead to punitive damages against the company that made the malicious claim. Companies in the UK don't want either the fines or the publicity of having their adverts proved to be lies in court, so they don't make claims unless they are truthful and can be backed up.

On the other hand, UK Supermarkets are quite happy to set out a comparison of how much a weekly shop would cost at a competing store in their foyer since it's just stating facts and there is no chance that it can end up in court. (provided the figures aren't fabricated)

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Re: You Sure?

Companies here in the US can't run specifically slanderous, non factual or demeaning, ads either. If (Thing A) does something measurably different or better than (Thing B) you can specifically state those qualities and name the "inferior" product.

A car with excellent safety can't say "Our car has been given a perfect safety rating and (Other car) wasn't. Your babies will die in a fiery crash if you trust your families safety to (Other car)".

If a product is a generic, but identical less the marketing, version of something (most commonly over the counter drugs) it is also perfectly fine to say "compare to Benadryl" or whatever.

If it is FUD or something subjective then you can't be specific about the Manufacturer or Product. For those situations the much maligned 'Leading or National or Store Brand" is used instead.

If you were to Trademark 'Leading Brand' you'd get shedloads of free advertising, but everyone would be calling your products shit all the time :)

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Re: You Sure?

"The washing powder example the other poster used is a good example of subjectiveness. There aren't any standardized, factual comparisons you could make."

I think you will find that there may be. These look like good candidates (British Standards and International Standards Organization)

BS EN ISO 15487:2010 Textiles. Method for assessing appearance of apparel and other textile end products after domestic washing and drying

BS EN ISO 105-C10:2007 Textiles. Tests for colour fastness. Colour fastness to washing with soap or soap and soda

BS 8475:2006 Instrumental colour measurement of textiles. Method

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Thumb Up

Re: You Sure?

Well holy shit! I stand corrected.

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Re: You Sure?

In the UK it's fine to use the name of competitors' brands, just as long as nothing you say is defamatory.

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Re: You Sure?

The "owned by Elvis Presley" example you give doesn't seem likely to be a trademark issue. It's not trademark infringement to state, factually, that a collectible item you are selling was previously owned by a famous person.

The key word there is "factually." The more specific key word is, "provenance," i.e., you had damned well be able to prove that particular Cadillac WAS owned by Elvis himself.

That said: I suppose it's possible Elvis Presley's estate threatened to sue eBay, or some other venue, or sellers of Elvis collectibles, and perhaps prevailed in an unusual copyright or trademark ruling, which prohibited the use of Elvis Presley's name in certain commercial contexts, including perhaps sales of items formerly owned by Presley.

But I'd like to see a copy of an actual court judgment if so. I'd also appreciate it if you'd point me to the part of U.S. Trademark law that states one needs permission simply to state the history of an item one is selling.

What is much more likely is that at one time 99% of the Elvis Presley memorabilia being auctioned on eBay was counterfeit, meaning thousands of buyers were cheated, leading eBay to change its own policies in response. I haven't checked, but it's at least possible eBay might prohibit sales/auctions of items said to be associated with Elvis simply to prevent fraud.

It's even more likely sellers claiming their item was once owned by some guy in a sparkly suit who sang 'Hound Dog' are referring to their Uncle Murray who did Elvis imitations at family parties. Counterfeiting is common - muzzling of free and truthful speech by trademark law not so common, despite some admittedly insane court rulings that might lead one to believe we don't even own our own names.

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Re: You Sure?

Downvoted for using the noun "shop" where the word for buying from said shop ought to have been used.

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Joke

Re: You Sure?

> Companies here in the US can't run specifically slanderous, non factual or demeaning, ads either.

Of course not, such content is reserved for political campaigns.

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Pirate

Re: You Sure?

Wikileaks isn't claiming a trademark of the name Wikileaks, let alone a registered tradmark. They can't enforce a trademark claim to the name of Wikileaks for this reason so the entire discussion is irrelevant. I could peddle Wikileaks merchandise with the official branding if I I had the inclination.

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Can I get in on the act?

I have some CAT5 cable here at home that some Wikileaks information passed over. Let's start the bidding at, say, £100?

Of course, in the 1700s and 1800s, it was hangman's rope that was collectible...

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Anonymous Coward

Re: Can I get in on the act?

Of course, in the 1700s and 1800s, it was hangman's rope that was collectible...

Nothing's stopping you from tying that cable into a nice noose :)

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Re: Can I get in on the act?

Surely the hosting company would have entered into some kind of legal agreement with Wiki to rent them a server. I'm pretty sure that data protection should prevent you from advertsing who your customers are/were and which servers they are using etc.

What's to stop them selling an HSBC international transaction server next time? Even though it's been wiped clean if they try and sell it as such surely it's breaking confidentiality at the very least?

I'm prepared to be corrected :)

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Ah the stupid

Overpriced server and a not very smart dad, although I would like to personally thank parents everywhere for letting their children have access to their PC and accounts.

I charge by the hour to fix those.

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Re: Ah the stupid

Presumably the dad was ignoring the 'you've been outbid' emails to his account and not asking questions about those too.

Not very smart kid either. Bidding eight times on something on eBay, rather than once in the closing seconds?

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Re: Ah the stupid

Or maybe the dad doesn't read his email every 5 seconds, and didn't expect his kid to use his computer in this way.

I don't see any evidennce in the article to call the dad stupid

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Re: Ah the stupid

Or the kid was smart enough to turn off the easy-to-find setting that determines whether an e-mail is sent when a Buyer is outbid...Or the kid entered 33,000 at the beginning, and the 8 bids were actually autobids, not ones he entered himself...Or the father had changed his settings so he wouldn't get a zillion e-mails at every stage of the bidding process, being an adult who is smart enough to know when the auction ends, and doesn't need constant reminders clogging up his inbox...

There are any number of reasons the Dad would have no warning. I'm more curious about why the son had access to the eBay account in the first place.....did Dad tell him the username and password? Did the son guess it?

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Anonymous Coward

Re: Ah the stupid

@cordwainer1

We mainly do IT support (etc) for SMEs but obviously don't turn down home user jobs when an enquiry comes in. The majority of home PC/laptops I deal with have every possible password saved from ebay and forums to skype to banking. The works.

this is on top of the usual "every toolbar ever" installed.

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Anonymous Coward

Hahaha ..

Bahnhof was trading on the document-leaking outfit's good name

OK, at least they have a sense of humour.

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Anonymous Coward

$32,900

I bet the guy who bid $32,900 and now owns the server is a bit p'eed too. He thought he was bidding against a legitimate bidder, only to find it was a "fraud".

He should really get the device for whatever it reached when it became a two horse race and everyone else dropped out. But there again, it seems he was willing to spend that amount......

Cat5? Bah - I have a Linksys ADSL router that Wikileaks data passed through - start your bidding now!

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Re: $32,900

Their current policy is to drop all bids from the 'inappropriate' bidder from the bid history then give the 2nd highest bidder from those that remain the option to buy it at that price.

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Conspiracy theory is a communicable disease of the mind.

And, sadly, there's no cure.

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Anonymous Coward

Re: sadly, there's no cure.

yeah, that's what they /want/ you to believe.

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Stop the rot

The father should send his conspiracy nut son on a critical thinking course.

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Re: Stop the rot

His son may well have serious mental health issues. A "critical thinking course" is something you might consider.

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Re: Stop the rot

Being a conspiracy nut doesn't automatically imply mental health issues (though clearly some of them do) and nothing in this article suggests it either.

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Devil

Re: Stop the rot

Here, have this free virtual ClueBat (tm)...

A lot cheaper and genrally more effective ;-)

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Anonymous Coward

client confidentiality

Remind me to never use Banhoff ever again.

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Re: client confidentiality

The drive was wiped. There's nothing Wikileaks on that server. And it was never a secret that Bahnhof was the ISP of Wikileaks.

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Re: client confidentiality

EVERYONE knew that Wikileaks was hosted at Banhoff. They came under legal threat. It was very public.

Hence the tagline "was hosted" at Banhoff...

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Makes you wonder

How many times does a price get bumped up by kids on their parents accounts, who then bottle out? There's no way to identify this, yet someone ends up paying over the odds.

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Re: Makes you wonder

Actually it doesn't. It never occurred to me that eBay auctions might be run to the same ethical and legal standards as Sotheby's, so the discovery that they aren't gives me precisely zero cause to ponder further.

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WTF?

Hypocrites

So, Dickileaks, a business that makes money out of encouraging others in stealing other peoples' copywrit and trademarked material and leaking it out (via a paywall), and from hyping secrets and conspiracy theories, but objects to others even knowing that they once used a box? And people like to think the only problem with Dickileaks is Assange.

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Re: Hypocrites

What copyrighted material are you talking about?

Because I sure hope you're not referring to the Scientology bible (HEIL XENU!).

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Re: Hypocrites

I actually do not believe that documents that have not ever been publicly shared can be considered trademarked, unless they have had a trademark formally applied for - and precious few of any Wikileaks document fit that description. They could be considered copywrit, yes, if they are a creative product. But I am not sure that old shopping lists, military plans, and private emails that are not creative product can even be considered copywritten. Moreover, you would face a very difficult task to even judge on which legal jurisdiction should such a copywrite consideration would be granted. (which is my same answer to why Assange isn't a "traitor" or a "spy" - he isn't a US citizen to start with...)

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I'll bet the father willl further be speechless

When his throat gives out. But, how many hours will it take ffor him to become speechless?

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Anonymous Coward

Not a problem

Dad should pay for the server and the "kid" (right 17 and he's a kid...), should be grounded for the next 20 years until he repays Dad with interest. What's the problem?

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Happy

Re: Not a problem

The problem is the same as that of any punishment that limits freedom while simultaneously demanding a financial penalty be paid, presumably by way of gainful employment.

It is hard enough for most unencumbered people to find work. To expect someone with severely limited options, due to the restrictictioms on movements portion of the punishment, while also expecting them to pay a fee on top of the minimums required for cost of living, is an extremely poorly designed punishment.

You effectively create a trap that person can likely never recover from and as such, never learn a lesson, while also extending the period of punishment far beyond a reasonable time frame for said crime. ("Learning a lesson" being the only point behind any justice system where execution is not the only penalty).

This trap also leads to a sense of helplessness and desperation that is a primary driving factor in perpetrating more crimes in an ill advised, but perversely logical, attempt to escape the cycle.

Not saying such a punishment isn't one of the better options available; you just ask what the problem was with such a punishment :)

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Big Brother

Re: Not a problem

And that's different from what Real Life ® and the banking system does to pretty much all of us how exactly, again...? Perhaps said yoof would benefit from an early crash cours into such affairs...

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I am an eBay seller, the excuse that my son did it is the excuse I hear everyday.

Simply got cold feet and can't find a better excuse than blame in your kids.

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I wonder if Assange's escape plans were on it?

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"I wonder if Assange's escape plans were on it?"

It appears that his escape plan is to gain some kind of immunity from prosecution by becoming an elected representative or diplomat, clutching at straws at best. If he was actively planning for something as lame as that in 2011 he's in even worst trouble than he thinks.

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