Legal mess for MS and EBAY they restricted my account copyright violation poppycock

[davo11111]

i recently discovered legitimate german OEM windows 10 keys cheap on german ebay, i did my research

https://www.techdirt.com/articles/20120703/11345519566/eu-court-says-yes-you-can-resell-your-softwar...

https://www3.wcl.american.edu/cni/0007/26339.html

http://www.theregister.co.uk/2002/05/08/selling_oem_windows_copies_you/

and many other sources 

i purchased sample keys from many german power sellers etc who sell 2500 keys a month all with good feedback, an example is 

lol_service look at this guys feedbackon these keys

purchased some test samples and activated them with MS on the phone, voila legitimate OEM DM channel keys

MS promised i would never have a problem with

so i setup another EBAY account after i promised never to to so again [another story] i placed 10 adverts the maximum and all keys sold in a few days, i sent the codes out good feedback being left from people buying them, then i received this  from ebay

Your listing has been removed: Copyright Violation - Unauthorized Item

Hello davo11111,

After reviewing your eBay account, we've taken the following action:
- Violating listings have been removed. A list of removed items is available further down in this email.
- We have credited all associated fees except for the final value fee for your listing(s).

Your listing was removed after the rights owner notified us that your item violated their copyright. We urge you to contact the rights owner directly for more information about why they requested the removal of your listing and whether you can relist the item.

For more information about our Vero program go to:
http://pages.ebay.com.au/help/tp/vero-rights-owner.html

If you have more questions, contact our policy experts:
http://ocsnext.ebay.com.au/ocs/cusr?query=1337&=PTB1187

Please be sure your current and future listings follow these guidelines, keeping in mind that additional violations could result in the suspension of your account.

The rights owner or an agent authorised 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.
 

Dear eBay Seller,If you are selling Microsoft product on eBay, it is your responsibility to ensure that your sales practices do not violate Microsoft?s intellectual property rights or license agreements.Microsoft will request that eBay remove listings which violate these rights and/or license agreements. Included below are some of the most common reasons for removal.Unauthorized distribution of Microsoft SoftwareViolation of license agreement (Recovery discs or loose/stand-alone Certificates of Authenticity (COAs))CounterfeitingHard-disk loadingEnd-user CopyingNot-For-Resale Software (NFR, Promotional)For more information visit the Microsoft Anti-Piracy homepage at http://www.microsoft.com/piracy. If you need additional clarification as to why your listing was removed, please contact softwareprotection@mm-microsoft.com.

We encourage you to contact Microsoft Corporation directly if you have any questions.

You can send an email to:
microsoft@enforcements.markmonitor.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/policies/programs-vero-ov.html

Here are the listings that were removed:
122087584519 - Windows 10 Pro 32/64 Bit Key Multilanguage Genuine Microsoft Activation
122089230357 - Windows 10 Pro With Genuine Key installed on 16 gb USB2 stick posted

they have removed all my listings and it looks like refunded the customers, even though they have activated the keys very infuriating,

so i rang ebay discovered it was microsoft themselves who ordered the takedown, i explained how i purchased these keys from an ebay powerseller in germany with impeccable reputation and feedback and how these were not australian OEM keys but german, and if you followed some of the links above, you will see that microsoft has lost its first sale right in europe which means it cannot dictate how or where the software is resold, people can own and sell licenses, and OEM can be unbundled from its machine and sold seperately, moreover, the courts in europe decided that a person CAN RESALE that key or license even if it has been used, not only for windows 10, but all software and games keys are resellable

after a half hour debate with a nice young ebay rep who understandably was confused i was passed over to ebay vero department 

where i was told by a no nonsense manager that he could remove my account restrictions but i wasnt allowed to list those  products again, or i would forfeit the account, and that i had to contact microsoft enforcement to have this threat waived 

i say i have every right to sell those keys and to the monies owed, now dozens of people are selling the same keys, a few days ago there was none, what do you guys think 

[trailer-board-paradise]

I wouldn't necessarily blame MS as they are just trying to protect their profits as any business would do, but I hear your frustration regarding big companies throwing their weight, and/or circumventing and breaking laws with impunity. Open any newspaper and examples are everywhere. You could try giving the ACCC/Fair Trading a call to see what they have to say...(probaby waffle lol)...

[davo11111]

yer nothing i can do except vent and try and get my money from ebay, its only 350 dollars and they had no right to refund the customers after id sent the codes out and the customers activated them

pursuing this further would be folly

[thecatspjs · Accepted solution]

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@davo11111 wrote:

microsoft would never give me permission to sell its products, that sounds too much like a free marketplace, however if i buy a microsoft product in a country that has ruled microsofts ownership of the license ends when it sells the product, then i can resell that product in australia providing it doesnt break any consumer or import law, which it doesnt 

 obviously i dont have the resources to take microsoft to court but im angry ebay refunded all the money from my sales and restricted my account i have no chance of getting codes from my happy customers who have already activated them and have now been refunded, at my expense

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eBays VeRO program is vexed IMO as there is no due process in place, and the policy oversimplifies a complex area of law, JMO JMO JMO .

If paypal facilitated the refunds you have clear recourse through them - perhaps consider tackling this situation from that angle.  Paypal are held to higher account by Australian authorities due to the more stingent requirements of Oz financial institutions.   Just my advice, no expert, there are others who seem to  know it all in this discussion.

[*tippy*toes*]

Did eBay give any reason for refunding the buyers? There's bugga all you can do as far as selling these things, but if PayPal refuses to give you the money back for the items you sent out when there was no valid reason for taking it, set the FOS onto them. That generally gets their attention.

[davo11111]

cheers buddy ill look into that ill post back and let you know

[k1ooo-slr-sales]

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@davo11111 wrote:

its not how i see it but how it is, hmmm me vs the system in court, not much i can do but inform german courts microsoft is flouting its ruling on these keys 

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while I do not believe that eBay is above the law, or that they should act outside of the law, I found the following page in the eBay.au policy documents:

http://pages.ebay.com.au/help/policies/software.html

Policy overview

Certain types of software - including academic, beta and OEM software - aren't allowed on eBay, or certain restrictions apply when listing them, as described below.

Make sure your listing follows these guidelines. If it doesn't, it may be removed, and you may be subject to a range of other actions, including limits of your buying and selling privileges and suspension of your account.

Simply put . . . . it is their site and they make the rules for members that agree to their Terms and Conditions set out in the User Agreement.  No OEM software is to be sold as a stand-alone item.

Now, I know that this does take a simplistic stance on this issue, but I think it only becomes complicated when it is not viewed in this way.  

No need to consider German court rulings or inviting support for class action lawsuits, if you want to use their site you have to abide by their rules that are set out in their policies.  Nothing hidden or secret, you might not agree with it, you might not have even read it when you joined, BUT you did agree to it when you joined eBay.

On this basis, any your court action may not ever get further than a courtesy meeting with a class-action no-win-no-fee lawyer who would decide that you are in a no-win situation as you agreed to the site T&Cs clearly set out in the User Agreement.

disclaimer:  I have no legal training or experience, what I have written above is an opinion.

[k1ooo-slr-sales]

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@k1ooo-slr-sales wrote:

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@davo11111 wrote:

its not how i see it but how it is, hmmm me vs the system in court, not much i can do but inform german courts microsoft is flouting its ruling on these keys 

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No need to consider German court rulings or inviting support for class action lawsuits

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just for clarification . . . . I know the OP did not invite support for a class action lawsuit, but he did state that he can't afford legal action . . . . and I think the only way he would be able to look at legal action would be in a no-win-no-fee type arrangement with a legal professional, and that would not be feasible on a single case basis.

[heihachi_73]

I wonder what would happen if I listed my still-sealed copies of Windows NT 4.0 that have been sitting around unused for 20 years...

[padi*0409]

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@heihachi_73 wrote:
I wonder what would happen if I listed my still-sealed copies of Windows NT 4.0 that have been sitting around unused for 20 years...

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You'd have stiff opposition from those selling empty PS4 boxes methinks...........................................

[k1ooo-slr-sales]

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@heihachi_73 wrote:
I wonder what would happen if I listed my still-sealed copies of Windows NT 4.0 that have been sitting around unused for 20 years...

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I suppose it would depend on whether it was OEM bundled software or stand alone store bought and boxed software.