If it's a copy and CLEARLY MARKED in the description that should be OK, no ? I bought a replica of the 1933 Double Eagle Saint and you can clearly tell it's not real gold once you have it in hand, if not from the pics. I don't need COPY stamped to realize it's a fake (and a similar copy of any other year would also stand out).
No. First of all, he did not advertise it as a fake until reported. Second, all fakes HAVE to say COPY on them. It was a terrible fake, but there are plenty of people out there who would be fooled by it. Just because you are able to tell it is a fake does not mean the novice collector can. I have seen plenty of terrible fakes selling for hundreds.