Posted on 05/02/2008 3:06:24 PM PDT by webschooner
I thought this might be of interest to the FR community, since it involves rights (actually as I found out, a complete lack thereof) with regard to software we paid for and many of us thought we owned. This is a bit long – I apologize for that, but I felt it might be important to include the emails I received from ebay and from Microsoft with regard to my alleged or apparent copyright rights violations. I have italicized the referenced emails so you can scan through those if you like and read the non-italicized text, which is my story.
I had already sold a dead laptop for parts, and later found that I had various disks that had come with it. One by one, I put the disks up on ebay auctions and sold them without a hitch ... until ... wouldn't you know it ... I started putting up "Microsoft disks". The first one was the OEM HP Win XP Home disk plus COA along with the HP drivers CD. I was fortunate at least in the sense that I sold it buy-it-now, the buyer paid, and I had already shipped the product to the buyer, when ebay emailed me, told me I was a bad boy, yada yada, said they had pulled the auction. (the auction was already over, but it vanished completely like it had never existed). Below is the email I received from ebay:
You recently listed the following auction-style listing:
Windows XP Home SP2 CD w/ COA + Driver CD, HP/Compaq
The listing was removed because it violated eBay policy. We notified members who placed bids on the item that the listing has been canceled.
The rights owner, Microsoft, notified eBay that this listing violates intellectual property rights. When eBay receives a report of this type of violation, we remove the listing to comply with the law.
Copyright infringement is unlawful and against eBay's policies. Copyright is the protection provided by law to the authors of creative works, such as movies, music, software, photographs and books, both published and unpublished.
Copyright owners possess the exclusive right to reproduce the copyrighted work, to distribute copies of the copyrighted work, and to perform or display the copyrighted work publicly.
eBay prohibits the listing of unauthorized copies of copyrighted works. Unauthorized copies include (but are not limited to) backup, pirated, duplicated, or bootlegged copies.
Guideline: If the product you are selling is a copy of another work that you aren't authorized to copy, don't list the item. Selling pirated or unauthorized copies of media material is a copyright infringement and is not permitted on eBay.
For more information, please visit the following Help page:
http://pages.ebay.com/help/policies/replica-counterfeit.html
To take the intellectual property tutorial, please visit:
http://pages.ebay.com/help/tutorial/verotutorial/intro.html
Please be aware that any additional violations of this policy may result in the suspension of your account. eBay understands that you may be concerned about this situation.We encourage you to contact Microsoft directly if you have any questions.
You can send an email to: netsafe@microsoft.com
For more information on how eBay protects Intellectual Property, or for additional information if you believe that your listing has been removed as a result of an error or misidentification, please visit the following Help page:
http://pages.ebay.com/help/tp/programs-vero-ov.html
For more information on why eBay may remove a listing, please visit:
http://pages.ebay.com/help/tp/listing-ended.html
Please be assured that your listings have not been targeted in any way. Although there may be similar items currently listed on eBay, we review all listings that are reported to us by eBay members or Verified Rights Owner (VeRO) program participants. We rely on reports from our members to help maintain the safety and security of our Community. We encourage you to report any items by using the REPORT THIS ITEM button on the listing so we can quickly remove any other items that should be removed.
Thank you for your understanding.
Sincerely,
eBay Trust & Safety
I had no idea I was breaking any copyright laws by selling the disk and COA that I had paid good money for with the computer (which had died). I was just trying to recoup some of my losses. I emailed ebay back and explained to them that the item was not a copy or pirated software, and they had made an error. Their reply was that when the rights owner (Microsoft in this case) notifies them of an auction on ebay that they feel is in violation, they (ebay) just pull it down without checking it out whatsoever. I was told to email Microsoft if I have further questions. So basically, when Microsoft says, "Jump", ebay says, "How high?" Amazing!
Some weeks later, I had a few disks from another computer of ours, this one a desktop which I had already sold, that I started selling on ebay. Again, everything went smoothly with every disk until I got to the Microsoft disks. The OEM Win XP disk was sold with the computer, since it was a working machine, but I have a couple of other M-soft disks that I wanted to sell. I knew now to be careful when the name M-soft was involved.
The first disk seemed innocuous enough to me -- Microsft Office XP Version 2002 Service Pack 1. There is no Product Key and no COA with this disk. But still, I had been burned, so wanted to be careful. These don't come up on ebay very often, but there was one up for auction, so I watched that auction to see if ebay would pull it down. That auction ran 7 days to completion, and they did not pull it down, so assuming it was "legal" to sell this one, I started my auction. But 6 days in, ebay pulled down the auction, and again, send me a nasty email, similar to the email received about the OS disk, but slightly different, as follows:
You recently listed the following auction-style listing:
The listing was removed because it violated eBay policy. We notified members who placed bids on the item that the listing has been canceled.
The rights owner, Microsoft, notified eBay that this listing violates intellectual property rights. When eBay receives a report of this type of violation, we remove the listing to comply with the law.
Copyright infringement is unlawful and against eBay's policies. Copyright is the protection provided by law to the authors of creative works, such as movies, music, software, photographs and books, both published and unpublished.
Copyright owners possess the exclusive right to reproduce the copyrighted work, to distribute copies of the copyrighted work, and to perform or display the copyrighted work publicly.
eBay prohibits the listing of unauthorized copies of copyrighted works. Unauthorized copies include (but are not limited to) backup, pirated, duplicated, or bootlegged copies.
Guideline: If the product you are selling is a copy of another work that you aren't authorized to copy, don't list the item. Selling pirated or unauthorized copies of media material is a copyright infringement and is not permitted on eBay.
For more information, please visit the following Help page:
http://pages.ebay.com/help/policies/replica-counterfeit.html
To take the intellectual property tutorial, please visit:
http://pages.ebay.com/help/tutorial/verotutorial/intro.html
Please be aware that any additional violations of this policy may result in the suspension of your account. eBay understands that you may be concerned about this situation.We encourage you to contact Microsoft directly if you have any questions.
You can send an email to: MSVeroUK@microsoft.com
For more information on how eBay protects Intellectual Property, or for additional information if you believe that your listing has been removed as a result of an error or misidentification, please visit the following Help page:
http://pages.ebay.com/help/tp/programs-vero-ov.html
The rights owner has created an About Me page that contains information to help you understand why removal of your listing was requested. For more information about the rights owner, please go to:
http://cgi3.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=msnetsafeteam
For more information on why eBay may remove a listing, please visit:
http://pages.ebay.com/help/tp/listing-ended.html
Please be assured that your listings have not been targeted in any way. Although there may be similar items currently listed on eBay, we review all listings that are reported to us by eBay members or Verified Rights Owner (VeRO) program participants. We rely on reports from our members to help maintain the safety and security of our Community. We encourage you to report any items by using the REPORT THIS ITEM button on the listing so we can quickly remove any other items that should be removed.
Your listing(s) may be eligible for relisting through My eBay. If your listing is eligible, you will see the listing in your Unsold Items page within My eBay. Listings that are not eligible for relisting will not be visible in the Unsold Items page.
To relist your item, sign in to eBay, go to My eBay to your Unsold items, and select the item that was canceled -- it's highlighted with a yellow banner. Before relisting, please make any changes necessary to ensure that your revised listing is in compliance with the law and eBay policies. You might want to check your other listings for similar violations as well.
Thank you for your understanding.
Sincerely,
eBay Trust & Safety
At this point, ebay required me to take a an online “tutorial”, to get my mind right, to be allowed to post items for sale on ebay again. I could not understand why they pulled this auction when there was no Product Key and no COA – this is apparently just a Service Pack disc. So I emailed M-soft at the email address ebay gave me, which was in the UK, so I was referred to M-soft in the US, and finally got this answer:
I believe the auction you noted below was reported to eBay due to concerns that it was offering to distribute used OEM software, without including the corresponding computer system. OEM software is distributed with new PC systems and has the phrase, "For distribution with a new PC only," printed on the user manual, the Certificate of Authenticity, and/or the program disc. The software may also indicate the name of the PC manufacturer on the Certificate of Authenticity or the user manual. When OEM software is received with and/or used on a computer, it is licensed for use only on that computer - the software and the original computer are essentially "married" and are considered a single integrated unit. Under the terms of the software license, OEM software is to be transferred only as part of a complete transfer of the computer with which the software was originally used. Distributing used OEM software with general PC hardware (hard drive, motherboard, etc.) would not be authorized under the terms of this license.
It's important to remember the next time you use OEM software to be sure to keep it with the original computer. This will ensure that you have the OEM software package available in case you need to reinstall the software, and will also enable you to transfer the software with the computer to a new user in the future.
I hope this information has been helpful. You can read more about Microsoft's OEM software at http://members.ebay.com/aboutme/msnetsafeteam/#OEM. You may also want to review eBay's OEM software policy at http://pages.ebay.com/help/policies/oem.html. And please do not hesitate to contact us if you have further questions or concerns. We will do our best to assist you.
Thank you.
MS NetSafe Team
The email I sent to Microsft that brought the above response, included a question from me with regard to the fact that I notice on ebay, that often M-soft software with a COA and Product Key is sold with wording similar to the following: “Disk will ship with an untested non-peripheral computer hardware item, to satisfy ebay and Microsoft rules … “ According to M-soft’s response, this is not acceptable to them. So basically, it almost appears that apparently one cannot legally sell a disk one thought one owned that has “Microsoft” on it unless it is sold with a computer. In practice, I see this very commonly done on ebay (selling the disk with a hardware item), so I don’t know if they are looking the other way on those, or not.
I have an extra copy of Microsoft Office Basic Edition 2003 that I bought with a computer, that I want to sell, but apparently at this point, having already been an unwitting “bad boy” twice, I might risk an ebay suspension for selling it on ebay, even if I sell it with a piece of computer hardware.
That’s it – That’s my story. I just thought it might be of interest to others. I have learned a lot. For example, I have learned that things are going so swimmingly well over at Microsoft with the stunning success of Visduh and all, that they had employees twiddling their thumbs, so they put them to work all day scanning ebay for auctions of Microsoft-labeled items that they could then order ebay to take down and reprimand the sellers for attempting to sell.
In the words of 'the Church Lady', "Isn't that special!"
Tech Ping
I’m a Linux guy, hate MS, but they do have the right to enforce their oem provisions. Why not just accept that?
Technically, the single-user OS that comes with the computer has been paid for a single license only. When you sold it on Ebay, it meant that someone else would now use the OS with your single license.
Don’t ask me why, but that is what is illegal.
FWIW, an OEM disk from a manufacturer like HP is only licensed for use with the specific machine it was sold with.
The problem with software is that you are buying a limited license to use the software. The disks are just there to allow you to put the software on the machine. The terms of the End User License Agreement generally prohibit resale of the software.
It stinks, but unless you have deep pockets to go after Microsoft and invalidate their EULA in court, they will stop resale of their software.
Their software licensing rules....and you agreed to abide by them - the EULA, remember? (that no one reads) - "I agree" - and we are happy! Right?.
MS - gotcha!
As far as Ebay pulling the auctions, just a guess here.....
Would you want to do battle with Microsoft in the legal system, or just flush the auction that Bill and Co are bitching about?
Not saying what you did was right or wrong, just very familiar with the bu!!sh!t MS licensing rules, I have to be. :(
I’d recommend starting to become familiar with Linux.
Interesting, thanks for sharing the tale. It seems MS is using the “for sale with a new PC only” line to justify their actions. From a legal standpoint, I can’t see how one could get around that unless one were to sell the computer the software came with as well, in one package. Even then, it still might be “actionable” as the computer at that point isn’t “new”.
Don’t get me wrong, i think, in a moral sense, you are in the right. About a year ago when I got this Mac I’m currently using to type this message, I looked around for just what you were selling: An installation disk that came with someone’s older computer, to install XP on my iMac (because I had some programs that could only run in Windows, and I couldn’t find my own at the time). I couldn’t find any, except for a few on eBay, but they were all the same price as a retail version of XP still available. (~$100). I was surprised, and a bit perplexed, why there wasn’t a burgeoning market for used “recovery disks” on eBay until I read your post now. Now it all makes sense. Seems MS is doing a bit of piracy control on eBay. Of course it’s NOT piracy to sell one’s own property, but hey, whatever.
I ended up using an instal disk I eventually found at home for an old computer. That disk got scratched though, so it’s no longer good for creating new virtual machines, but fortunately I have many clones of it in case one of the clones gets infected with a virus, or spyware, etc. It would be nice though to not have to pay $100 for something that I only intend to use for a few programs though, if I should ever find my entire iMac in a crashed state. I’m not too worried about that though. ;)
I didn't say I didn't accept it. It is what it is, so I deal with what is. I shared this for informative purposes only. Microsoft has 'the system', including other companies (ebay) acting for them without any question or any review. I think it's a bit outrageous, heavy-handed, and over-zealous on the part of Microsoft, but that's just my opinion.
Or has Microsoft also decreed that I cannot have opinions about the matter?
When I bought Microsoft Office from the computer manufacturer at time of purchase of the computer (it wasn't free and it wasn't cheap), I think the computer manufacturer should have disclosed to me that I would be breaking the law if I later attempted to sell said software apart from the computer. They made no such disclosure, either before or after the purchase of the computer. I think (again, just an opinion) that is unethical business practice, and it leaves a very bad taste in my mouth.
boohooferyou
Didn't post it for sympathy, dude. As stated, posted it for informative purposes.
You do not buy or own software. The money you are exchanging is for a license to USE the software. You should really read your licensing agreement much more closely. You also are not allowed to resell your license to use the software.
If you do not want to be so restricted in your software, consider open source.
Another reason to start moving away from using Microsoft products. They won’t need to worry about anybody reselling the useless Vista op system. There will soon be millions of people trying to GIVE away that piece of trash.
“Another reason to start moving away from using Microsoft products. They won’t need to worry about anybody reselling the useless Vista op system. There will soon be millions of people trying to GIVE away that piece of trash.”
That post makes zero sense.
You cant resell OEM disks. It says it right there on the package.
Let’s all stop using “M$ evil useless OS” because some people cant read.
Some people’s irrational hate for Microsoft seem to affect their IQ.
How much? LOL
O.K. I stand corrected.
Wrong. I read every word on the jackets of both CD's I described (and that is the only "package" they came with), and nowhere does it say that you cannot resell the disks.
How did the activation go? Did you end up on the phone to India?
I just grabbed one and it has stamped on it ‘not for resale’.
use craigslist - ebay sucks
They did to everyone else (at least who purchased new).
Microsoft has 'the system', including other companies (ebay) acting for them
Really isn't anything specific to Microsoft. It's copyright law you're dealing with.
Ebay is upholding its responsibilities under copyright law because it doesn't want to get sued.
acting for them without any question or any review.
The courts, not eBay, do the questioning and review.
In Mexico we just go down to the Eje Central, right there under the shadow of the Attorney General’s office, and buy any disk, application or program for less than $10 USD No sweat.
As I stated, I have two M-soft disks that do not have that anywhere on the disks or the jackets. It only says I cannot make copies. I did not make any copies.
It may be an older version. Some of those say something like “for distribution with a new PC sale only” (or something like that.
May be ... but in practice, I have sold other used software, and HP (non-Microsoft) disks on ebay, and was never bothered. M-soft seems to be the only company that gets their panties in a wad about it.
Now that is funny!
I wonder if they are also trying to diminish the sales of unlicensed non-Microsoft software. The last time I purchased software on eBay, the vendor sent just me a URL to a website that whois showed registered to "Arabs 2 Canada." The vendor had simply posted commercial software on the Arabs 2 Canada server for his customers to download. The guy had a high favorable feedback rating and a lot of sales. Crime pays.
I complained to eBay, and within a couple of weeks the vendor's account was gone. However, shortly thereafter I noticed that he had reopened under a new name, with exactly the same merchandise at the same prices and the same descriptions.
Whaa. Get over it.
Should be “unfair to the vendor.”
I'm already over it, dude. As stated, I posted it for informative purposes. If it isn't information that interests you, I think there are other threads ...
Copyright law has always been that way.
Ebay’s playing the assimilation game as well — right now setting the stage for a hostile takeover of Craig’s list despite only owning a 25% share, gotten by dubious means.
Yes, it is an interesting area. However, I see a difference in the items you mention -- you cite copying of music, & photocopying books, obvious copyright violations of course. But I think it is obvious that one can resell original books and resell original CD's apparently without breaking any copyright laws, as it is done open and publicly, as far as I know, without interference.
With software, on the other hand, they don't want to allow you to sell the original disc, and have managed to get the law on their side. I don't agree with it, but it is what it is.
I thought craigslist was wholly privately owned. Do you possibly have a link to a story about that?
People resell them all the time even though you say they “can’t”. My point was that if Microsoft continues on its current path of churning out worse-than-useless junk like Vista, the pool of people clamoring to get their software, even via dirt cheap underground deals, is going dry up in a big way. As for “irrational hatred of Microsoft”, I’m perfectly happy with my OLD Microsoft products, but plenty pissed that I couldn’t get a laptop with the features I wanted without getting the infernal Vista. I figured it couldn’t be as bad as all the “irrational haters of Microsoft” were saying, so I bought it anyway. Big mistake. Like I said, if they keep it up, they won’t need to worry about monitoring black market sales of their software in the future, because nobody’s going to want it at any price.
I’m only telling you as far as the law is concerned, there is little distinction between music, literature and software. And yes, you can buy a book, but have no right to photocopy it and distrbute it.
A while back I read and article which contended that the entire EULA concept has never been addressed by the courts and there is a strong chance that EULA's are not legally binding. Companies like Microsoft have quickly backed off when a party wanted the legality of the EULA decided by the courts, fearing that the decision would go against them and invalidate all EULA's. So they currently exist in a legal limbo...
I believe that is urban legend. If you do not/cannot agree to the EULA, the software will not install and you are entitled to your money back. Getting money back by not agreeing to a EULA has been tested, I believe.
This will only accelerate adoption of non-Windoze operating environments.
I wonder what the deal is if you were to sell your old PC with the original Windows OS still installed.
Are we required to format the hard drive first?
But you can sell a used book.
I don’t see the difference.
A book is a bunch of words written by an author
Software is a bunch of 1’s and 0’s also written by an author.
the paper book and a platic disk are just mediums to convey the actual product.
I can sell a used book on E-bay but not a used Disk?
Don’t make sense to me.
But i guess they do have that license agreement, But i don't recall ever signing such a contract in the past.
All I can say is check out copyright law 101. I'm not making this up. This has been around for decades.
I hear ya.
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