EBay Pulls MS Auctions, Neutralizes Complaints

melaniemad writes: "I haven't seen this story anywhere else but kuro5hin. Microsoft has set up a user account on eBay: msoft@buddy.ebay.com. They apparently use this account to shut down auctions of Microsoft software. This has resulted in a lot of negative feedback, which has been changed to 'neutral' by eBay. This does not coincide with their policy about removing feedback. But then, do the rules ever apply to Microsoft?" (read more...)

(Boy, a ten-day-old story. I need to start reading kuro5hin more often.)

Anyway, I know from experience that my chances of getting through to a real eBay person are approximately nil, especially on Memorial Day, so I'm not even going to try. Here are the questions I'd like to ask, and if some eBay staffer would like to answer them, feel free.

1. Regarding "VeRO," the Verified Rights Owner Program. Comments from sellers who have had their auctions yanked include:

• "I own this software. It is mine to sell."
• "Ended my perfectly legit sale."
• "I was forced to buy it from Dell, I should be able to sell it. www.linux.org"
• "I have the right to sell the Windows 98 I BOUGHT.. this is BULL SHIT....."
• "ended 2 of my legit auctions. won't respond to emails."
• "Legit auction canceled."
• "MS & Ebay Cancelled my perfectly legit auction."
• "copyright violation - on unopened retail box!"

These are not spurious complaints; they come from over a hundred eBay sellers with positive feedback ratings like 40, 253, even 476! Clearly these people are not scammers, they are legitimate and frequent eBay sellers who know the rules and who feel angry that they've been ripped off.

It is already apparent that eBay is ending perfectly legal auctions of E-Meters based on illogical and unfounded claims of copyright violation from the Church of Scientology. So "Verified Rights" doesn't mean much.

Can anyone at eBay confirm that each and every software auction terminated by Microsoft was illegal? And if not, shouldn't VeRO be renamed the "Unverified Rights Owner Program"?

2. EBay claims that, upon receiving VeRO complaints, it "reviews the reported items and, unless there is an obvious error, ends the auction." Were any of Microsoft's reports so reviewed, or were the auctions just immediately terminated?

3. Where on Questionable Items: Software is it indicated that software, unopened in the box, purchased at retail, cannot be resold?

4. Has Microsoft invoked a particular law - UCITA would be an obvious guess - in terminating these auctions? Or has it pointed to its license agreements (which for many of these auctions, apparently, would not apply)?

5. EBay's page about removing feedback doesn't mention cancelling rating of feedback, which is obviously a very important part. Isn't that misleading?

6. What did Microsoft do to get this special favor done for them - neutralization of their negative feedback? Does eBay do this for all their VeRO program members, or just Microsoft?

Update, 25 minutes later: gehrehmee pointed out Microsoft's internet piracy webpage (the URL got chopped, but deserves to be seen). Scroll to the bottom to read (emphasis added):

Microsoft and eBay have initiated an aggressive program to stop auction sites that Microsoft believes may be distributing infringing product. Microsoft monitors all auction sites and conducts daily searches to identify auctions suspected of offering counterfeit or infringing software. The company notifies eBay of suspect auctions and asks them to terminate the auctions within 24 hours.

Phrases like "due process" and "guilty until proven innocent" are coming to mind.

Comments

No surprises...

[seebs]

After they decided that email inviting you to visit their site more often was "administrative", and changed their privacy policy to make it look like everyone had asked to receive email, phone calls, and other contact, I don't think anyone should have expected better of them.

eBay spams. eBay lies. eBay lies about spam, eBay lies about abuse in general.

eBay does not accept complaints about usenet spam or junk email unless the complaints come from registered users - and you can't be registered without giving them, in their opinion, blanket permission to send any email they wish to describe as administrative.

Even if you cancel your account, you may get additional email; I certainly did, as did a number of other people I know.

In other words, no surprise; scum is scum.

Content modification

[Signal 11]

Depending on how they wrote their AUP, users might be able to sue for impersonation - they have modified what you said. Second, this doesn't suprise me as eBay is all about protecting its corporate ledger - anyone believing this is anything but a faceless corporation obviously hasn't had their morning coffee yet.

Now, about potential remedies - first off there are dozens of eBay look-alikes out there. Yahoo springs to mind. Take your business elsewhere and let msoft@buddy.ebay.com know it. Also, I think it may be possible to trick eBay into tripping over itself: I say everyone takes their old copies of Windows 3.1 and puts them on sale. When MS comes around and tries to remove them, point them to the shrink-wrap license and let 'em know that it is perfectly legal to sell it. Oh, and then sue them, of course.

religious paraphenalia

[coyote-san]

They better not ban my sale of demon-summoning paraphenalia - I'll sue for violation of my civil rights to peaceful exercise of my religion!

Well, maybe the *demon-summoning paraphenalia will have to go - they do tend to get wild, although in a college town who can tell? - but the pentagram is entitled to precisely as much legal protection as the bibles. A quick check shows _2971_ items matching the search word "bible," so they can't claim that they ban all auctions of religious articles.

But what happens when my girlfriend, a defrocked nun, attempts to sell her old paraphenalia? Is the mummified toe of a saint religious paraphenalia, or a mere human body part?

(To be fair, eBay shows 247 items matching "pentagram", 335 items matching "satan", and a bit more seriously 908 items matching Wicca, 1349 matching Buddha, yet only 242 items matching Baptist. They haven't been totally taken over by the crazies, yet, but have clearly let specific controversies lead their policy decisions and are establishing bad precedences.)

hmmm

[Vagatech]

Not sure who's palm they greased for this but there treading on pretty thin ice. One of the few doctrens of U.S. copyright law that actualy works to protect a consumers rights is First Sale.

As long as I include the entire package that I origanaly payed for I have the right too sell it to who ever I wish and the manufacturur has nothing to say about it. Be it a book, a CD or a piece of software (whatever there licence agreements say, they've been chucked out of court to many times to count) it is a protected right for me to transfer my licence to whom ever I wish without consulting the copyright holder or providing them with a royalty. They have rights to the profits from First Sale and nothing more.

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Re:hmmm

[bwt]

But the OS (if you can call winders a OS) cds that come with most OEM systems say on the "for sale with a new pc only" now is selling those on ebay a violation of that clause? How binding is that clause? I agree that if it is binding etc. that it really sucks.

The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).

Re:hmmm

[Anonymous Coward]

OEM copies have never been legal to resell. They are distributed for use on a specific machine, and not transferrable. There are really three different versions of (for one example of a Microsoft product) Windows 95 (and, of course, aside from the fact that there are numerous releases also):

OEM Copies- These are resold by hardware vendors with their machines. Many vendors, from Compaq and Dell down to the lowliest 'screwdriver shop' bundles these versions with their hardware to sell a complete system. Generally these sell for about $100 and have to be sold at the same time as a certain amount of hardware. I have a copy of the OEM license handy, and the current rule is that it needs to be sold along with at a minimum a motherboard or a hard drive.

'Upgrade' copies- these are the retail boxed copies sold for a standard price of $89. These copies MUST go on a machine that already has an earlier version of Windows and/or replace a legitimate copy of Windows (usually 3.1 or 3.11) that isn't in use on another machine. Many people purchase this version because it's cheaper than a 'new computer' retail box. When this upgrade version is purchased, you can no longer legally use the version of Windows that it 'ugrades' on another machine. Likewise, if you buy a Windows 98 Upgrade copy, you can not then sell off the Windows 95 copy that it replaces, or install and use the Windows 95 on another machine.

'New Computer Retail Box'- This is the most expensive way to purchase Windows 95. These copies sell off the same shelf as the Upgrade Retail box copies, for $189. These copies are intended for installation on a brand new computer, and do not require an upgrade path be in place to be legitimately licensed.

It's refreshing to have the opportunity to talk about Microsoft licensing policies in an on-topic fashion on /. Usually we just talk endlessly about the GPL.

I personally, to be an example, have licenses to run Microsoft OSes on three separate machines.

1. I bought my Windows 3.0 'upgrade' copy back when 3.0 came out. To get the upgrade I had to present the title page from my Windows 1.0 users manual. That copy of Windows has now been upgraded from 3.0 to 3.1 and to Windows 95.

2. I bought an additional copy of Windows 98 about a year ago. It's the $189 retail box copy, which has been 'patch' upgraded to Second Edition. I didn't buy the upgrade version, because I have Windows 95 downstairs in the lab running on the machine that talks to emulators, my EPROM programmer, etc. on the workbench. The 98 machine is upstairs in the living room, an entertainment (game) machine.

3. I got in early on Windows NT by purchasing the first release (October 1992) of the Win32 SDK, which included a copy of Windows NT *very alpha*. I paid $30 for it and Microsoft shipped a second alpha release before shipping the 'final release' which included an NT 3.1 workstation license. That was upgraded to 3.51, to 4.0, and now to Windows 2000. Before Windows 2000 the upgrade paths for Windows 9x and NT were totally separate. With W2K Microsoft decided to allow people with Win 9x to upgrade to W2K, which is a significant cost savings over a full retail box copy.

Anyhow, that's the low-down, coming from someone who ran Windows 2.1 and 3.0 on an 8088 machine with a Hercules graphic card for numerous years. I believe I got a 286 a while after 3.1 came out, and I remember how cool it was to finally have '386 Enhanced Mode' running when I got a 386DX/25 (motherboard new, CPU salvaged out of a defective Northgate 386 motherboard that I got for (only!) $100.)

Lawyers

[Mike Schiraldi]

Man, at least when Microsoft came after Slashdot, they didn't ask for their karma to be reset.
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Ebay User Agreement

[PopeAlien]

But hey- they just 'neutralized' the comments- that means they balanced them out right? I mean there must have been tons of positive user comments as well right?

I like this bit from the Ebay User Agreement:
Therefore, although we use industry standard practices to protect your privacy, we do not promise, and you should not expect, that your personally identifiable information or private communications will remain private .

It's always nice to see reassurance that "industry standard" means that your personal info or private communication need not remain private.

Even the RIAA is not going after people selling used or shrinkwrapped CD's.. Gah.
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Re:Fair? No. Cost effective? Probably.

[um... Lucas]

Ebay has no need to verify that software is unopened. I've sold a few legal versions of MSFT software (Frontpage and VB 5.0 learning edition) and in both cases when people emailed asking about the legality of transfering my licenses, I refered them to this:

License Transfer

If you are seeking permission to donate or transfer software product,
software licenses, or hardware loaded with Microsoft software to another
party, you may do so without obtaining written permission provided you
follow the terms and conditions of your End User License Agreement (EULA).
All transfers of license, either through a sales transaction, donation, or
gift must include all product documentation, product manuals, original disks
and licenses. Further conditions of transfer may be included in your EULA.
The individual or entity giving up their software and license(s) must
understand that they are giving up all of their rights to the transferred
software, including all rights to upgraded versions of the software.

The specific text can be found at:
http://www.microsoft.com/permission/copyrgt/cop- soft.htm. It's about 3/4's
of the way down the page under the heading "license transfer".

Sorry about any funky line breaks in there. I just copied it from my email... so, unless they've changed that policy in the past month or so, it's always been perfectly legal to transfer/sell your license to someone else. They're (Microsoft... I don't blame eBay for wanting to steer itself out of Microsofts sights) just being major assholes/bullies for no good reason except they think they can wring a few more dollars from the world.

Take a look at MS's own auction page

[Dark Phantasmo]

if you go to http://auctions.msn.com you will find a lot of MS software for sale. Are they simply killing the auctions at eBay, in order to get people to use ms's auction site?

Re:Microsoft Just Does Not Learn From its Mistakes

[Hrunting]

I mean, its not like this would go unnoticed with the vigilant /. community on the prowl.

And what exactly are the extents to which the vigilant /. community's influence reaches? Slashdot's been misquoted in a couple of tech news stories and maybe one major publication. Most people who use eBay, I'd bet, don't read Slashdot.

To MS, this isn't negative. They are 'defending' their copyright and property rights (although I think it's on rather shaky ground, their reasoning I mean). They have to do this sort of thing as part of maintaining their copyright. Microsoft would look a lot worse if they finally did manage to get a pirate into court and the pirate said, "But look, there was a lot of warezing going on right there on eBay and you did nothing."

First off, Microsoft does not need good PR or bad PR. Everyone knows who they are. They have a de facto monopoly on Windows systems. Moving away from Windows is probably hardest the move to make in the computer industry, and big companies who buy the majority of Microsoft products are not going to look at this auction as anything more than what a business needs to do, so they're not going to lose any customers there. The people this pisses off are the Slashdot crowd, who most likely aren't buying Microsoft anyway, again no lost sales there. As for the DOJ case, Microsoft telling eBay that it's piracy is happening and they need to stop it is not anything like bundling and the other issues involved with the DOJ case. Klein is not going to point at eBay and say to the judge, "Look at what Microsoft just did, Jackson! That should show they're a monopoly!" Jackson would laugh at him.

The real target here should be eBay, which has clearly violated its own stated policies. The issue here is not the fault of MS; it's that of eBay.

To summarize, it's part of business, Slashdot is not powerful enough to change the entire world's viewpoint on Microsoft, focus on eBay.