I fought Microsoft over selling NFR software and I won!

[Southern Patriot]

I had listed my Windows 7 Ultimate Signature Edition Party Pack on eBay and after a day or so, I got the e-mail telling me that my auction had been removed at the request of Microsoft:

You recently listed the following listing:

160368269963 - Windows 7 Ultimate Signature Edition Party Pack

The listing was removed because it violated eBay policy.

The rights owner or an agent authorized to act on behalf of the rights owner, Microsoft Corporation, 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.

The rights owner reported the following information:

Dear eBay Seller,

If you are selling Microsoft product on eBay, it is your responsibility to ensure that your sales practices do not violate eBayâ??s Rules & Policies: http://pages.ebay.com/help/sell/policies.html

Microsoft will request that eBay remove listings which violate eBayâ??s Rules & Policies, or for one of the following reasons:

Unauthorized distribution of Microsoft Software

Counterfeiting

Hard-disk loading

End-user Copying

For more information visit the Microsoft Anti-Piracy homepage at http://www.microsoft.com/piracy or our â??About Meâ?? page at http://members.ebay.com/aboutme/msnetsafeteam. If you need clarification about why your listing was removed, please contact [email protected].

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by law to the authors of creative works, such as movies, music, software, photographs and books, both published and unpublished.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. eBay prohibits the sale of software if this violates the manufacturer's copyright license. Some common types of software with license agreement restrictions include:

- Academic software

Software sold at discounted prices to students, faculty members, and educational institutions.

- Beta software

Early copies of software that are distributed by software developers for evaluation and troubleshooting purposes.

- Original Equipment Manufacturer (OEM) software

Software that is included with the purchase of new equipment.

You may need to obtain the manufacturer's consent to sell this software.

For more information, please visit the following Help page:

http://pages.ebay.com/help/policies/replica-counterfeit.html

You may need to take a tutorial. The next time you sell, you may be asked to take the tutorial, if it's required. Once you've completed the tutorial successfully, please review your account status for any other possible concerns. If there are no other issues, you should be able to sell again.

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 Corporation directly if you have any questions.

You can send an email to: [email protected]

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?View...d=msnetsafeteam

For more information on why eBay may remove a listing, please visit:

http://pages.ebay.com/help/sell/questions/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 team

I e-mailed eBay and Microsoft's Net Safe team with my feelings that my auction did not violate any copyright laws. I got the following e-mail back from Microsoft:

Hello Matthew,

Thank you for your e-mail. Each day our team reviews hundreds of auctions and online advertisements to identify offers involving counterfeit or otherwise unauthorized software. Our program is primarily intended to protect internet buyers from acquiring software that they would not be licensed or otherwise authorized to use. We carefully review the listings before we request that they be removed, nevertheless, we know that mistakes are made in a small number of cases. We thank you for your cooperation and understanding as we review your auction.

It appears that this auction was reported to eBay because the software that was being offered is not licensed for retail distribution. Microsoft distributes software in a variety of formats, each of which are licensed for specific uses and have specific transfer requirements. Many software components are limited from redistribution through "Not For Resale" or "Not For Retail Or OEM Distribution" licensing. These components are generally distributed for promotional purposes, and are licensed for demonstration, testing, or evaluation only. They are not complete, retail software packages, and are therefore not authorized for retail transactions such as eBay auctions.

I hope this information has been helpful. Please feel free to reply if you have additional questions or concerns. We will do our best to assist you.

Thank you.

Rachel

MS NetSafe Team

In response, I e-mailed them the following, referring them to some relevant court cases:

Your company's stance on that seems to go against the ruling that was issued by a federal judge last year in a case about resale of promo CD's ( http://www.eff.org/files/filenode/umg_v_au...V03106SJO-O.pdf ). Surely there would be no legal difference between a promo CD and promo software? And are you telling me that there is some difference (other than the special packaging) between the copies of Windows 7 Ultimate that were given to the House Party hosts and the copies that will be sold at retail? Your company has already had to settle a lawsuit when you tried to sue someone reselling Academic copies of Windows XP and Office (http://en.wikipedia.org/wiki/Microsoft_Corp_v._Zamos). How many more times does this type of thing have to go to court before your company understands the concept of the First Sale Doctrine? You CANNOT restrict someone from reselling something that they legally obtained from you. End of story. While Microsoft may be the "800lb. gorilla" of the software industry, you cannot and DO NOT make the law, nor are you entitled to bully consumers by trying to impose non-existent laws on them.

I'd really like to hear your thoughts on the court cases I mentioned above, and why your company feels that they are still in a legal position to request the end of auctions for NFR copies of software.

Thanks,

Matthew Elder

Just a few minutes ago, I got the following e-mail from Microsoft:

Hello Mr. Elder,

We are in receipt of the additional information you provided regarding eBay auction #160368269963, in which you were offering Windows 7 Ultimate Signature Edition Party Pack. We have contacted eBay and notified them that Microsoft does not object to the reinstatement of your auction pending its further review of this matter.

Sincerely,

MS NetSafe Team

Yippee! Perhaps this will serve others who have similar problems selling software on eBay.

[LittleNeutrino Veteran]

wow. A way to go B i dont see how that is legal lol.

[nytiger73]

Nice job!

[Southern Patriot]

wow. A way to go B i dont see how that is legal lol.

It's legal, because according to the court case that I quoted in the e-mail, companies cannot restrict people from reselling products that they legally obtained. Just because a company marks a product as "not for resale" or something similar, those markings have no legal bearing.

[NfoTech]

I had listed my Windows 7 Ultimate Signature Edition Party Pack on eBay and after a day or so, I got the e-mail telling me that my auction had been removed at the request of Microsoft:

I e-mailed eBay and Microsoft's Net Safe team with my feelings that my auction did not violate any copyright laws. I got the following e-mail back from Microsoft:

In response, I e-mailed them the following, referring them to some relevant court cases:

Just a few minutes ago, I got the following e-mail from Microsoft:

Yippee! Perhaps this will serve others who have similar problems selling software on eBay.

Way to go and potentially ruin any more offering like this one.

[Southern Patriot]

Way to go and potentially ruin any more offering like this one.

If it keeps Microsoft from threatening people, so be it. They have been in the wrong every time they issued those reports.

[Andrew Lyle Global Moderator]

Wow. That was pretty epic dude.

But I hope in the future, you aren't offered more product opportunities like this one, even if the law says you can resale property that is clearly marked "not for resale".

I disagree with that case ruling, and really hope you don't make profit from selling something that was given to you for free.

[nytiger73]

Way to go and potentially ruin any more offering like this one.

I agree with the OP. How would this ruin any future offerings. If said software was legally obtained by the seller (whether as a gift, promo, or educational discount), according to the court cases specified, it is protected under the First Sale Doctrine.

I am glad he had the gumption to point this out to them and they cannot just bully people.

[Southern Patriot]

I agree with the OP. How would this ruin any future offerings. If said software was legally obtained by the seller (whether as a gift, promo, or educational discount), according to the court cases specified, it is protected under the First Sale Doctrine.

I am glad he had the gumption to point this out to them and they cannot just bully people.

Thanks for the support. LOL, I didn't know people even used the word "gumption" anymore!

[NfoTech]

I agree with the OP. How would this ruin any future offerings. If said software was legally obtained by the seller (whether as a gift, promo, or educational discount), according to the court cases specified, it is protected under the First Sale Doctrine.

I am glad he had the gumption to point this out to them and they cannot just bully people.

Well... when they know people are putting up stuff like this for sale on sites such as eBay and can get away with it, Microsoft might just say the hell with it and not give out promotional material such as this again. Which in turn ruins it for the rest of us.

[+Majesticmerc MVC]

Yeah its kind of lame that you are trying to make money off something that was essentially given to you as a gift, and quite an expensive gift at that. People climb over each other to get hold of rare stuff like this, and this kind of stuff makes the manufacturer less likely to do it in the future. :/

Congrats though :)

@NYTiger73: It doesn't stop anything legally, but why should MS make the effort to give this sort of stuff away when its just going to go on eBay anyway?

[Southern Patriot]

Well... when they know people are putting up stuff like this for sale on sites such as eBay and can get away with it, Microsoft might just say the hell with it and not give out promotional material such as this again. Which in turn ruins it for the rest of us.

The same thing could be said for other types of promotions though. People sell things that they win in giveaways and promotions all the time, and that hasn't stopped companies from doing promotions.

[iamwhoiam]

But I hope in the future, you aren't offered more product opportunities like this one, even if the law says you can resale property that is clearly marked "not for resale".

I disagree with that case ruling, and really hope you don't make profit from selling something that was given to you for free.

Sole motivation was greed.

Thanks for the support. LOL, I didn't know people even used the word "gumption" anymore!

I, for one, don't support you. If I could say what I'd like to say on the matter, I'd get banned for it. I'm not in that mood just yet.

[Astra.Xtreme]

While it might not be legally wrong, it definitely is ethically wrong to profit off a freebie. Freebies are called FREE for a reason. No money should be involved.

[+Neowin User 007 Subscriber²]

Awesome! I'm glad to see someone fighting the big dogs...

[Yillb]

Very cool.

People make money off of free stuff all the time, home run balls for example.

[Titoist]

I cannot believe that you are that greedy to profit from a freebie and giveaway to go to such lengths to be able to sell this freebie. While I admire your courage and legal abilities to fight large corporations, in this instance while legal (considering you won) it is still completely unethical and could possibly ruin any future chance of corporations such as Microsoft to create and fund such events.

I wouldnt be surprised if for Windows 8 they say "**** it, the contestants won't honour the arrangements, so lets not even bother having giveaways."

[bryonhowley]

(N) (N) I sure home Microsoft puts you on a permanent ban on any future promotional offers!! I sincerely hope you make no money of your e-bay listing.

[Berserk87]

Now i just think your a giant scum bag...

You agree'd to host a windows 7 party, so they sent you a free copy of windows 7 along with supplies to use at the party.

Its not bad enough that you received a free copy of windows 7 for hosting the party then not following though, but now your trying to profit off of it...

[Hendrick]

Congratulations! Made me happy.

[1WayJonny]

On-Topic!

"Riiiccooooolllaa!!!!!!"

[Southern Patriot]

Now i just think your a giant scum bag...

You agree'd to host a windows 7 party, so they sent you a free copy of windows 7 along with supplies to use at the party.

Its not bad enough that you received a free copy of windows 7 for hosting the party then not following though, but now your trying to profit off of it...

At no point have I ever said that I was not hosting the party, just that I wouldn't need the copy of Windows 7 that they provided (I already have it through work), and I don't plan on using the party supplies that they sent (they were hideous and tacky). No where in the agreement for House Party did it state that you had to use either at your party.

[jwjw1]

At no point have I ever said that I was not hosting the party, just that I wouldn't need the copy of Windows 7 that they provided (I already have it through work), and I don't plan on using the party supplies that they sent (they were hideous and tacky). No where in the agreement for House Party did it state that you had to use either at your party.

so whats the ebay link?...maybe we can bid on some other stuff you swindled for free....LOL

[_ads_]

The perfect way to kill a "promotion". Way to go dude! (N)

[BoredBozirini]

Nice one, I like it when someone sticks it up to the big guns.

And to the people that seem so "disgusted" that he is making money of a freebie, GROW UP.