Ebay and Microsoft Fight Software Piracy

illeism writes "E-commerce News is reporting that Microsoft is going after Ebay sellers offering pirated copies of Microsoft software. From the article 'The suits do not name eBay as a defendant and Microsoft indicated that it has received extensive cooperation from the auction giant in the past as it tried to ferret out piracy. In fact, Microsoft said it asked eBay to remove some 50,000 suspicious auctions during 2005 alone ... The suits are mainly against individuals and cover alleged counterfeit sales of several Microsoft programs, including Windows and Office XP and older versions, such as Office 2000.'" More interestingly, the article flatly states that MS has no hope of ending piracy. The suits are apparently meant to 'protect consumers'.

Re:More M$ Hooey

[jdreed1024]

This is analogous to a bank requiring your SS number to open an account, despite the fact that that number was meant soley for government use, and never designed for that sort of application. When asked why a SS number is required, when in fact, this requirement is illegal, bank managers invariably reply, "oh...you have every right to refuse to divulge your SS number...as we have every right to decline your account application

I agree with most of your arguments, but that's a poor comparison. The SSN is your Tax Identification Number (and if you're a business opening a bank account, they require your company's TIN). Interest on bank accounts has to be reported to the IRS, and banks need your SSN to do it. They're one of the few places (along with any potential employer) that has a legitimate reason to ask for your SSN.

Better examples of places that have no good reason to ask for it are your cell phone provider, electric company, cable company, etc. Yes, in some states, they can't require it and can force you to pay a deposit instead, but other states have no such protection. Even some supermarkets are asking for it for their "rewards" or "coupon" keychain tags.

Shill Alert

[A beautiful mind]

The article is by Laura DiDio - the SCO supporter shill.

You get what you paid for - it's a venomous piece.

Resale of OEM software

[Half a dent]

It is legal for individuals (and companies?) to re-sell OEM licenses in Europe under the 1991 European Computer Software Directive.

Here is a link to the story:

http://www.theregister.co.uk/2002/05/08/selling_oe m_windows_copies_you/ [theregister.co.uk]

Europe does tend to stand up to MS no matter what Bill puts in his EULA.

It might be news, but it's not new.

[Peldor]

I tried to list a new-in-the-box Windows NT4 CD on Ebay several years ago. It was pulled within hours with a note stating Ebay in cooperation with MS do not permit reselling of their software except by licensed parties (and so forth).

A lot of these 50,000 'suspicious' copies are probably legitimate, you just can't sell it on Ebay because that would price the software at its true market value. First-sale doctrine [wikipedia.org], we hardly knew ye.

Re:Apply the Laura DiDio Filter

[davebert]

Or maybe you meant GrokLaw [groklaw.net]?

Now if Ebay would police the rest of their site...

[krbvroc1]

Funny how many scams are run on Ebay and they do little about it. Trying to contact a human is close to impossible. Their safe harbor department rarely gives a shit. Known scammers are allowed to keep their sellers id's even after numerous complaints.

Given Ebay history, my guess is that MS threatened to sue Ebay, so they are cooperating.

The First Sale Doctrine v. Licenses

[blckbllr]

Couple of disclaimers: IAAL in IP. That being said:

A couple of posts in this thread refer to the First Sale Doctrine and lament the fact that one can buy software from Best Buy, EB, newEgg.com, etc., but then runs into legal trouble because that same person cannot turn around and sell that same software to a third party, claiming that the first sale doctrine should protect such a sale. But does it?

I think we can all understand the first sale doctrine as it relates to physical objects, e.g., chairs, tables, books, etc. Only one copy or one article of a particular object can exist at any given time. Thus, while two books, such as Ender's Game, may contain the same text, same layout, etc., and be virtually identical in every respect, there is only one copy of each book in existence. Thus, the first sale doctrine exists allowing me (or the original buyer) to sell that book to another person without repercussion from the original copyright holder for copyright infringement (specifically, the right to distribute).

However, software is a little different though. Arguably, the first sale doctrine should apply to the CDs (or DVD) on which the software resides, the box in which the CDs came, etc. Thus, I should be able to sell my original CDs to a third party without repercussion from the copyright holder. However, with respect to the software, what did I initially buy? Because the software on the CDs can exist in multiple locations at the same time (unlike physical objects), arguably, the copyright seller did not actually sell me the software, but the license to use the software. Furthermore, EULAs often contain language that the license is non-transferable. Thus, I could probably not sell my license to a third party even though I can sell my original CDs.

I could say that while the first sale doctrine applies to the physical storage medium of the software, the first sale doctrine may not apply to the license to use the software residing on the storage medium. If the EULA states that the license is transferable, so be it and I can sell that license. However, absent such terminology, it can probably be argued that the first sale doctrine, while applying to the physical absects of the sold package (CDs, manuals, packaging materials, etc.) it probably does not apply to the right to use the software.

Now, one might argue that movies on DVDs are comparable and therefore my argument with respect to software is negated or diminshed. However, I would put forth that Macrovision was designed specifically to prevent movies on DVDs from existing in multiple locations at the same time. Therefore, what you are buying from the copyright holder is not a license to view or play the movie, but an actual copy of the movie for personal use.

More legit software to be pulled

[Quila]

Does anyone else remember the Microsoft eBay buddy account they used to object to many legitimate auctions? Sellers of legitimate Microsoft products put up harsh comments and negative ratings for the MS account, and eBay switched them all to neutral. Later, after this trick went pretty public, they shut the account.