Ashamed - Topps T206 Buy Back Fraud

[mighty bombjack]

Originally Posted by Peter_Spaeth

Yes, they are illegal, if you sell them without disclosure. You might try reading the Mastro indictment, for one thing.

I should read the indictment, clearly.

So, simple question: It is not illegal to take the graphite end of a pencil and write on a t206 card (though many here might like it to be) and then list that on eBay without mention (because the writing would be pretty obvious). But to take the eraser end of the pencil to one that previously marks on it and list it on eBay without mention is punishable by law?

[Peter_Spaeth]

Originally Posted by mighty bombjack

I should read the indictment, clearly.

So, simple question: It is not illegal to take the graphite end of a pencil and write on a t206 card (though many here might like it to be) and then list that on eBay without mention (because the writing would be pretty obvious). But to take the eraser end of the pencil to one that previously marks on it and list it on eBay without mention is punishable by law?

Well now you are into a gray area whether that would be a material alteration that needs to be disclosed. We could argue about whether it is or isn't. But for a clear-cut case like trimming, yeah. There is also a California statute specifically on point that I recall but cannot immediately locate it.

[botn]

Originally Posted by Peter_Spaeth

Well now you are into a gray area whether that would be a material alteration that needs to be disclosed. We could argue about whether it is or isn't. But for a clear-cut case like trimming, yeah. There is also a California statute specifically on point that I recall but cannot immediately locate it.

Adam once posted that statute. It is Calif Business and Professions Code sections 21670-21672. http://law.onecle.com/california/business/21670.html My recollection is that there are other states that have adopted similar laws.

[mighty bombjack]

Originally Posted by botn

Adam once posted that statute. It is Calif Business and Professions Code sections 21670-21672. http://law.onecle.com/california/business/21670.html My recollection is that there are other states that have adopted similar laws.

Wow, that's pretty clear cut. I had no idea such sports card-specific statutes existed anywhere.

I had originally viewed this almost entirely from the point of view of Topps, who had no copyright on the product or interest in the OP's sales. I now think that the civil liability in terms of fraud/misrepresentation is clear, and the NJ statute quoted above points to criminal liability as well. However, and as has been pointed out, the civil damages are pretty small (unless someone has a massive collectin of these, which has been devalued considerably at this point), and there ain't a DA anywhere that wants to touch this particular prosecution.

I may discuss it with my older brother when he comes to town tomorrow, as he is a former Colorado DA himself, and see what he thinks about it. He will likely yawn and say "Who the hell cares," which is why I'm glad to have an online community like this to go back and forth with.

[Bliggity]

Originally Posted by mighty bombjack

I should read the indictment, clearly.

So, simple question: It is not illegal to take the graphite end of a pencil and write on a t206 card (though many here might like it to be) and then list that on eBay without mention (because the writing would be pretty obvious). But to take the eraser end of the pencil to one that previously marks on it and list it on eBay without mention is punishable by law?

If the seller lists it as unaltered, and does so with the intent to defraud, then yes.

ETA: subject to Peter's caveat. If the buyer relies on any representation that the card is unaltered and that factors into the decision to purchase, or the price, then it is fraud.

[Peter_Spaeth]

Keep in mind a lot of this is theoretical discussion . I am not going to get arrested for going 56 in a 55 MPH zone. Larry Harris is not going to get prosecuted here, the authorities have better things to do. And so on. But is what he did illegal, and could he be prosecuted? Absolutely.

[mighty bombjack]

Originally Posted by Bliggity

If the seller lists it as unaltered, and does so with the intent to defraud, then yes.

ETA: subject to Peter's caveat. If the buyer relies on any representation that the card is unaltered and that factors into the decision to purchase, or the price, then it is fraud.

So intent matters? The OP could theoretically argue that the premium from the Topps pack was more the frame (as a presentation piece) than the card and frame in its entirety. Topps was putting random cards into frames with zero correlation between the two, so OP was just doing same. The argument would become how natural the assumption that these came in packs as such would be (I imagine).

None of us believes that about the OP's intent, of course, but I think this is a pretty gray area as well in that the Topps206 holder is not too far differentiated from a generic topholder (seems closer to that than to a slab, at least). I don't know how easy it is to remove and replace the cover.

Sorry if I'm annoying anyone here. I'm enjoying the back and forth quite a bit.

[Peter_Spaeth]

I think the issue is that for whatever reason, as proven by the spreadsheet, people are paying at least in part for the item as a whole originating from Topps. There may be no logic to it, and Larry's frankencards may be just as good as the original items from Topps, but for whatever reason people want these as sold by Topps. and not as assembled by Larry Harris. I personally would just want the T206 within, and think the frame is stupid, but that's just me.

[mighty bombjack]

Originally Posted by Peter_Spaeth

I think the issue is that for whatever reason, as proven by the spreadsheet, people are paying at least in part for the item as a whole originating from Topps. There may be no logic to it, and Larry's frankencards may be just as good as the original items from Topps, but for whatever reason people want these as sold by Topps. and not as assembled by Larry Harris. I personally would just want the T206 within, and think the frame is stupid, but that's just me.

And you see, having helped create this product as a Topps employee, I think Topps' intention was NOT that the framed creation be worth more than the card within. They wanted to include these cards that they purchase don the secondary market, which happened to be smaller than most of the cards in the pack. Each pack contained a single mini that floated loose, but the other minis (the autos, GU, and originals) were out into frames more as a way to assimilate them into the other cards in terms of size (and make it a bit harder to detect by simply feeling a pack).

I've seen a lot of fraud in this hobby (as have we all), but I've also seen too many collectors get angry at others (manufacturers, dealers, ebayers) for reasons of their own greed and overly-heightened expectations. I think this case is a confluence of the two.

[Peter_Spaeth]

Topps' intent is irrelevant in my opinion. Topps' original intent way back when was to sell chewing gum, not expensive collectibles. Does that matter any more? If collectors value the cards in frames from Topps more than the T206s themselves -- and the spreadsheet and all the money Larry made prove this -- then he committed fraud by lying about the origin and nature of what he was selling.

[mighty bombjack]

You are right that it is irrelevant in terms of fraud and misrepresentation on the part of the OP, but I'm pointing out that Topps, as a company, agrees with your opinion on the matter. The t206 within the frame was the whole point for Topps, and I'd bet that several that were directly inserted had been previously trimmed and/or otherwise altered (again, someone should ask Kit Young if there were stated standards in this area - maybe he'd remember, though I doubt he'd share).

I guess my point is that Topps doesn't give a crap about anything being argued here, and they didn't copyright the frame for a reason, that's all.

[Bliggity]

Originally Posted by mighty bombjack

So intent matters? The OP could theoretically argue that the premium from the Topps pack was more the frame (as a presentation piece) than the card and frame in its entirety. Topps was putting random cards into frames with zero correlation between the two, so OP was just doing same. The argument would become how natural the assumption that these came in packs as such would be (I imagine).

None of us believes that about the OP's intent, of course, but I think this is a pretty gray area as well in that the Topps206 holder is not too far differentiated from a generic topholder (seems closer to that than to a slab, at least). I don't know how easy it is to remove and replace the cover.

Sorry if I'm annoying anyone here. I'm enjoying the back and forth quite a bit.

Yes - typically, criminal liability does not attach unless the person has an intent to defraud. If someone put a raw T206 into a Topps holder years ago for their personal collection, and then sold it a decade later having forgotten that they didn't pull it straight from the product, that would not be criminal fraud.

Judges will sometimes tell juries that intent can rarely be proven by direct evidence; however, the Jury can look at all the circumstances of a person's actions to determine his intent. I think we all agree that the intent was pretty clear here.

[tschock]

Originally Posted by mighty bombjack

So intent matters? The OP could theoretically argue that the premium from the Topps pack was more the frame (as a presentation piece) than the card and frame in its entirety. Topps was putting random cards into frames with zero correlation between the two, so OP was just doing same.

Of course, the OP could 'attempt' to argue that, but the evidence would tend to negate that argument, IMO. From one of the listings:

"1909-11 T206 Topps Buyback Red Ames Hands at Chest TOUGH COMMON Piedmont Sweet Caporal 150 back. I just acquired a huge lot of Topps Buybacks with Hall of Famers, Southern Leaguers, and tougher backs."

[Peter_Spaeth]

Originally Posted by tschock

Of course, the OP could 'attempt' to argue that, but the evidence would tend to negate that argument, IMO. From one of the listings:

"1909-11 T206 Topps Buyback Red Ames Hands at Chest TOUGH COMMON Piedmont Sweet Caporal 150 back. I just acquired a huge lot of Topps Buybacks with Hall of Famers, Southern Leaguers, and tougher backs."

He must have meant assembled, not acquired.

[Bliggity]

Originally Posted by tschock

"1909-11 T206 Topps Buyback Red Ames Hands at Chest TOUGH COMMON Piedmont Sweet Caporal 150 back. I just acquired a huge lot of Topps Buybacks with Hall of Famers, Southern Leaguers, and tougher backs."

"But I never said that the one I was selling was part of that lot!"

[judsonhamlin]

I will post this example from the New Jersey Criminal Code - a fourth degree crime is punishable by up to 18 months in State prison, even if it rarely is.

NJSA 2C:21-2 Criminal Simulation. A person commits a crime of the fourth degree if, with purpose to defraud anyone or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he makes, alters or utters any object so that it appears to have value because of antiquity, rarity, source, or authorship which it does not possess.

No mention of the existence of a copyright as an element of the offense.

Anyone in NJ buy any of these?

[Peter_Spaeth]

Originally Posted by judsonhamlin

I will post this example from the New Jersey Criminal Code - a fourth degree crime is punishable by up to 18 moths in State prison, even if it rarely is.

NJSA 2C:21-2 Criminal Simulation. A person commits a crime of the fourth degree if, with purpose to defraud anyone or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he makes, alters or utters any object so that it appears to have value because of antiquity, rarity, source, or authorship which it does not possess.

No mention of the existence of a copyright as an element of the offense.

Anyone in NJ buy any of these?

What does it mean to utter an object????

[tschock]

Originally Posted by Bliggity

"But I never said that the one I was selling was part of that lot!"

Dang you, and your vigorous defense!