Contributory and Vicarious Copyright Infringement as Applied to Auctions, Flea Markets, and Swap Meets: How Fonovisa and Napster Have Set the Standard

Authors

• Laura E. Hancock

Abstract

Merriam-Webster's Dictionary defines a flea market as an "open-air market for secondhand articles and antiques." Although its origin is nearly impossible to trace, it is commonly believed that the flea market first appeared during the 1960s, in Paris, France. The term itself is translated from the French phrase, marchi aux puces.

Generally, a flea market has been described as a venue renting "space to anyone [offering for sale to the public] merchandise, products, items, services and all other legal needs of the buying public." Individuals renting space and selling within these venues are known as vendors. Flea markets are truly much more than the above description suggests, however; today, flea markets have become a multi-billion dollar worldwide industry that seems to defy precise definition. As a phenomenon, flea markets are often thought to be the "incubators and breeding grounds of entrepreneurs" that are so representative of our free enterprise system.  At one time, many believed that selling items at a flea market was the only way one could start a business without making a longterm commitment and without access to a large amount of capital. In 2000, it was estimated that at least 5,000 "flea markets, swap meets, open-air, farmers, antique and collectible markets and special events" existed within this country, with more than a million vendors catering to over a hundred million customers each year.

Now, "the world has gone digital" and these flea markets, swap meets, and auctions are being conducted on-line, as well as off-line. You can find these on-line flea markets, swap meets and auctions at Internet sites such as: ebay.com, traderonline.com, napster.com, morpheus.com, as well as numerous others. There are so many of these on-line markets that it is virtually impossible to keep up with all the websites. As a result, courts have been busy determining whether or not owners of on-line and off-line auctions, flea markets and swaps shops can be subject to contributory and vicarious copyright infringement.

Recommended Citation

Laura E. Hancock, Contributory and Vicarious Copyright Infringement as Applied to Auctions, Flea Markets, and Swap Meets: How Fonovisa and Napster Have Set the Standard, 9 Computer L. Rev. & Tech. J. 295 (2005)