eBay Feedback

[josmul123]

What is the name of your state (only U.S. law)? Illinois (Chicago)

Hello,

I recently sold a copy of Microsoft Office "Not for Resale" on eBay. The auction clearly stated that the item being bid on was marked "Not for Resale" and the photo of the item showed the "Not for Resale" sticker on the case.

I did some research prior to listing this item, as I believed that "Not for Resale" meant it was unlawful for me to sell the software. As it turned out, from what I could find, the First Sales Doctrine, as determined by the supreme court, indicated that it was not illegal to sell this software, and Microsoft has taken several people to court regarding this issue in the past. Each case was dismissed based on the premise that Microsoft could not dictate what consumers did with their software other than dictate that they don't copy copyrighted work. It's my understanding that in order for copyright law to be violated, a COPY must be made.

So, my buyer didn't read the auction. He bid on and won the copy of the software, paid for it, and I was ready to ship it out when I received an e-mail while standing in line at the post office. It said "It appears that selling this software is illegal. I want to cancel the transaction."

I responded to him with the court cases I had found that indicated this was not actually illegal as well as a link to the wikipedia page on the first-sale doctrine. I also gave him the option to cancel the sale if he still wanted to. He did, and I issued a refund.

Once the refund cleared, he left me a negative feedback rating on eBay saying "After I won bid; checked out NFR label, illegal sale per microsoft"

Considering eBay feedback is supposed to indicate how well I handled the sale (I was very responsive, polite, and I let him out of his CONTRACTUAL OBLIGATION to purchase the item even though it was completely his fault that he didn't read the auction description), I was upset about the negative feedback. I sell maybe 1-2 things on eBay per year, and this buyer has single-handedly ruined my reputation as an eBay seller by indicating that I had done something illegal. This is absolutely not the case, as even eBay knows that NFR software IS legal to sell as long as actual copyright laws haven't been broken in the process.

I contacted the buyer asking him to reverse his feedback, and he told me it was his "moral duty to warn other people about my illegal sales." I can't get through to this guy that what I did was not illegal. He even claims to have reported me to Microsoft for attempting to pirate their software. The guy's completely hard-headed and refuses to budge.

So I contacted eBay, who has informed me that they cannot remove something libelous unless it's been determined by a court that it's indeed libel.

So, my next step is to sue the guy... But I didn't have any monetary damage. Is it possible to sue someone for libel just so you can have the court order so that eBay will remove the feedback rating as requested? I'm not looking to get rich off this guy... I ended up selling the software to a very happy bidder for triple the money. So, I actually was better off not selling to this man. However, my reputation has been dragged through the mud, and on eBay, reputation is everything. I doubt I will be able to get a bidder to trust me after they read that comment posted by this man.

I don't want to hire an attorney. I'd like to take this guy to court, but I'm concerned that if I'm not asking for damages, I have no case. Also, whose jurisdiction would this take place in? Mine or his?

What's the precedent for something like this?

 

[swalsh411]

It IS illegal PER MICROSOFT so this guy's feedback is not wrong. Ebay won't remove the feedback. You can't prove damages and likely don't have the resources to sue him anyway.

 

[josmul123]

I was afraid this was going to happen. So many people know nothing about Not-for-Resale software. For something to be "illegal" it must violate civil or criminal law.

What I did was absolutely legal (Microsoft Corp v Zamos, UMG Recordings v Troy Augusto et al). 100% legal. Microsoft is NOT allowed to dictate what you do with something unless you are bound to the license agreement, something that was contained within that cellophane wrapper which was never opened. I was not the end-user in this case, and the license agreement did not apply to me, as I never installed the software (or opened it for that matter).

The question is about the libel suit, which I will be starting up... Not to argue the pedantic issues of NFR software.

EDIT: The post this was replying to has been removed... I know it's going to look a bit weird now

 

[quincy]

Yes, your second post looks weird.

Legally pursuing a writer of a negative, even libelous, Ebay feedback will generally not be worth the costs involved, josmul, especially if the buyer in your case lives in a different state.

I suggest you post a response to the original buyer's feedback, stating the facts about the item you had listed for sale and the reasons why the sale was legal. Cite the Copyright Law's First Sale Doctrine and the relevant caselaw, as you have here, while carefully avoiding any direct (or indirect) attacks on the original buyer. Simply state facts.

Then draft a letter to the original buyer, or have an attorney draft a letter to the original buyer (much more effective), advising this buyer that his feedback is libelous and legal action will be pursued against him, and damages sought as compensation for the reputational injury that has resulted from his false accusations, if the review is not immediately withdrawn from the site. Again, cite the First Sale Doctrine and caselaw, so if the buyer takes the letter to his own attorney, the attorney can advise the buyer that the item you offered for sale was, in fact, an item that could be legally sold.

That should do it.

If it doesn't, you can post back.

 

[josmul123]

Quincy,

I read through every single post in this forum after posting mine, and all I could hope was that you would respond. Has anyone told you you're fantastic today?

You're probably right about not being worth actually pursuing in court, but I think if the guy gets a nice certified letter that threatens to pursue charges (Based on factual means, of course), it may rectify itself.

I'll try that route. I've also appealed it to eBay, citing his reason for leaving the feedback (which I quoted them) to be against their terms of service under the "Feedback abuse" section. I'm kind of hoping eBay will take care of it as well.

Thanks for the prompt reply.

 

[AlmostALawyer]

I agree with Quincy, but I would add that you don't have a case for defamation. In my opinion, your situation doesn't meet all the elements necessary to bring such an action. Even if it did, these cases are very difficult to win, and would require an attorney. Thus, it wouldn't be worth the time or money because, as you stated, there aren't really any damages in this case (an element to defamation). Good luck!

 

[quincy]

Uh, no, I don't believe the word "fantastic" has been used to describe me today, josmul. Some other adjectives have been used, however.

AlmostALawyer, I would not be so sure that there is not actionable defamation here. Accusing someone of selling illegal items is defamatory and, on a site like eBay, it can result in a loss of trust among buyers which equates with lost sales/loss of income. This is reputational injury. There can be compensation awarded for reputational injury alone, even without economic injury. I have seen successful defamation suits built on less.

That said, this would not be a slam dunk, and would cost far more in time and dollars than it would likely be worth.

Awfully good for a threat in a letter, though.

 

[swalsh411]

I didn't say it was actually illegal. I said Microsoft says it's illegal and that is what the guy was saying in his feedback. Killing abortion doctors is moral PER radical anti-abortion groups. Get it?

I am very familiar with Not-for-Resale. Don't assume somebody doesn't know something because you can't properly interpret a sentence or understand what the word "per" means.

 

[Proserpina]

I happen to think quincy is indeed fantastic

 

[quincy]

swalsh, IF you are "very familiar" with the Not-for-Resale suits, then you are also aware that Microsoft offered to drop their NFR suit against Zamos in exchange for Zamos dropping his countersuit against them. Zamos refused to drop his countersuit unless Microsoft met certain conditions, one of which was an apology from Microsoft for having sued him in the first place.

Zamos' sale was only considered "illegal per Microsoft" at the time Microsoft filed suit against Zamos. By the time Zamos countersued, it was already becoming clear, to Microsoft and others, that courts were finding sales such as Zamos' were NOT illegal, based on Copyright's First Sale Doctrine. Zamos' suit with Microsoft was settled in 2005.

The eBay review josmul's buyer wrote saying jasmul's sale was an "illegal sale per Microsoft" is a false statement, as Microsoft is aware that such a sale is not illegal per court decisions. And your statement that it "IS illegal PER MICROSOFT" is likewise a false statement. . . . . . false not because of your "per" but because of your "IS illegal" before your per and the word "Microsoft" after it.



(thank you, proserpina ; I think you are fantastic, as well )

 

[swalsh411]

Microsoft's official position is that it is illegal despite the court decision which is what I said in my first response.

But whatever. Your entire issue is a hill of beans.

 

[Mass_Shyster]

Does eBay still allow you to report non-paying buyers? If so, you've got one.

 

[quincy]

"A hill of beans" is an awfully good comeback, swalsh, although showing where Microsoft has said it is their "official position that it is illegal despite the court decision" may have been a better one.

Stevef, josmul said he was able to sell the item to another bidder for triple the money, so I don't think having a non-paying bidder is an issue for him.

 

[Mass_Shyster]

Stevef, josmul said he was able to sell the item to another bidder for triple the money, so I don't think having a non-paying bidder is an issue for him.

I realize that, but if he's reported as a non-paying bidder, he may be willing to mutually withdraw the comments.

Way cheaper than court.

 

[Zigner]

I'd hate to see the OP penalized further by falsely reporting a non-paying bidder.

OP agreed to refund the money after it was paid for. This action does not a non-paying bidder make...