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Final update on eBay

This column originally ran in ComputorEdge on January 14, 2005
(Issue 2302, You and Your Hard Drive)

Back in October and November, we visited eBay's copyright policies – specifically, the fact that any business can immediately end an auction by claiming a copyright infringement.

I found out about this policy inadvertently, when I decided to sell a couple copies of Sun's Solaris operating system for Intel platforms. I'd purchased the copies legally, and had used them for awhile on an old Pentium as a Web server for the Computer Museum of America.

However, shortly after the auction closed, eBay informed me that the auction was cancelled as Sun had filed a copyright infringement complaint against me. eBay, per its policy, also informed the winning bidder that they did not have to complete the purchase.

To my relief, the purchaser still wanted the software, and paid for it. So far as I know, he's pleased with it.

I, however, now had a blot on my account – and a ominous warning from eBay that another copyright complaints against me would result in my account being suspended.

Note that my copies of Solaris 7 and 8 for Intel were the original copies I'd bought from Sun, and that I'd fully uninstalled them from the PC they'd been installed on.

What made the frustration even worse was that, in absolute defiance of eBay's copyright enforcement policies, Sun refused to respond to my or eBay's e-mails requesting an explanation of what copyright violation had occurred.

eBay was apologetic, and copied me on an e-mail they'd sent to Sun demanding that Sun correspond with me – but weeks went by with no response from Sun.

Not every company acts like a jerk

Contrast Sun's behavior with that of Adobe.

In December, I decided to sell my copy of Adobe PageMaker 6.0. I no longer publish in print, having moved all my efforts online. I figured I might as well find this copy of PageMaker a home, since it remains a stellar program.

After I sold the copy of PageMaker, the winning bidder asked me to transfer the license to him. A toll-free phone call to Adobe accomplished this task quickly, and the new owner of my old copy of PageMaker 6.0 is presumably publishing to his heart's content.

Adobe didn't mind that I'd sold software I no longer needed. The staff member on the phone was cheerful and helpful, and in closing said he hoped I'd consider Adobe for my future software needs.

Sun's follow-up

Sun finally did e-mail me with an explanation of their copyright complaint. One Marilyn Glaubensklee, assistant general counsel in Sun's Intellectual Property Law Dept., wrote to me via e-mail on Dec. 3 (or some six weeks after I requested an explanation in my appeal of the auction suspension).

Anyway, Glaubensklee wrote that, "un's software license agreement specifically prohibits you from transferring Sun software once used. This means that you are not legally authorized to sell this software on eBay (or at a garage sale for that matter)."

Actually, it doesn't meant anything of the sort. Sun can insert any idiotic restriction they want into their software license – that doesn't make it legally enforceable.

Another view

In search of clarification on the issue – because California's consumer protection laws generally provide consumers broad ownership rights to most soft materials – I went to the Web site of the Electronic Frontier Foundation, one of the very first online guardians of individual liberty.

I've been familiar with EFF since the late 1980s, when they first began providing legal counsel to those who ran afoul of the legal authorities while on dial-up bulletin board systems, or BBSes.

So EFF knows the terrain of cyberspace better than any other group.

At EFF, I came across some pretty savvy opinions written by Kurt Opsahl, a staff attorney for EFF.

I forwarded Opsahl a copy of the e-mail that Glaubensklee had sent me. He wrote back (quite quickly, too, I might add), that, "Consumers reasonably expect that they can resell things they have purchased in secondary markets, whether we're talking about cars, furniture, books or software. A secondary market for software is not only fair to original buyers who no longer need the software, but is also a necessary ancillary to the market for used computers - especially as the years go by and original vendors no longer sell older versions of the necessary software.

"Accordingly, EFF believes that software vendors should permit transfer of the software (perhaps with a few specified reasonable limits, such as an obligation on the part of the transferor to delete all copies and/or an agreement to be bound to the same license rights by the transferee). This is, after all, what many major vendors do (for example, Windows XP and Adobe Photoshop).

"We have also communicated this message to Sun, and hope that they will reconsider their position."

As do I.