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Copyright Takedown Abuse?

by Renegade Knight / May 2, 2007 5:19 AM PDT

I'm in the middle of getting to the bottom of a situation.

Long story short. Since I already had Ultimate I didn't install my Vista Home Premium Express Upgrade and tried to sell it on eBay to another Toshiba owner. My auction was shut down due to a "Copyright Infringement" notice from MicroSoft. eBay provided no details and refused to send me a copy of the take down notice saying I would need to obtain a subpoena. They cited potentially confidential materials that could be contained in the take down notice as their reasons why. Personally I think it would be the sheer amount of work to keep up with all the requests like mine.

My understanding is that I own this in full compliance of any and all copyright laws. Especially since MicroSoft and/or Toshiba sent it to me. Thus I'm not violating any copyright laws. If it goes to another person who would be within their rights to own it (a fellow Toshiba Owner) I'm having a hard time seeing a copyright issue.

There may be a shrink wrap license agreement somewhere in the mix (which of course since I didn't install it, I didn't accept) but I'm not aware that the take down law actually applies to an alleged license problem.

That's my question. Is the law that lets copyright owners issue a take down notice (without proof) specific to "unauthorized content" meaning since I owned it legitimately it was taken down in contrast to the law. Or is it broad enough to cover license agreements that may or may not be in effect since you haven't accepted it and are trying to flip the soft ware to someone else who can legitimately use it?

This is fuzzy and eBay has not been helpful. MicroSoft is still responding to my request for information.

Without help from these two parties I can't set up an auction that won?t be taken down. I seem to have no recourse even if I'm 100% legitimate (and I'm definitely 100% within Fair Use Rights...if they existed here.) Anyway the question is bold above.

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MS' take
by mc4_a / May 2, 2007 6:02 AM PDT
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They are having a hard time explaining their take
by Renegade Knight / May 3, 2007 7:37 AM PDT
In reply to: MS' take

You are likley right. The MS Take is that the software is tied to the computer thus I can't sell it though I installed Ultimate (which I believe has become tied to the computer and which I can't sell) They have not yet actually said what I did wrong, if anything, or why they issued a take down notice. Yestersay they sent me an email that started wtih "I suspect..." I told them that since I my auction was actually shut down, not suspected of being shut down I'd like a real answer.

However the question really is did they abuse the copyright infringment laws to shut down the auction?

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Follow Up.
by Renegade Knight / May 25, 2007 6:01 AM PDT

Microsoft never directly answered any questions that I asked on exactly why they issued a DMCA notice. They never highlighted the specific section of any relevant EULA that showed my the issue.

The net result is that the DMCA was used to block the auciton but Microsoft never showed at all why that was legitimate. However I did make a case for why it was fair use, why it was a legitimate transaction, and how even if there was a EULA violation I could work within the law to effect the auction. They didn't address any solutions to the problem. I suspect their legal department gives the poor saps stuck answering questions like mine instructions to be vague.

I'm stuck with 150.00 worth of useless software.

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"Toshiba sent it to me." = DOA = TAKEDOWN.
by R. Proffitt Forum moderator / May 25, 2007 6:08 AM PDT

While we can discuss that you don't own it, the versions that Toshiba supply are rarely those full retail versions which you can sell.

Bob

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Toshiba Version
by Renegade Knight / May 25, 2007 1:17 PM PDT

As you noted, tt was the Toshiba Version intended for use on a range of qualifying Toshiba Laptops. There are plenty of folks who own those laptops on, which it would be legitimate if it were installed. I provided a list in the auction and stated that's what it was for.

The abuse was that MS never identefied the part of the agreement (let alone which agrement, EULA, TOS etc. involved) that they claimed created the infringment. I didn't agree to the EULA since I didn't install it. Thus that's void. There may have been a TOS attached to the website that processed the upgrade (that proving a non OEM can legally effect a transfer which is what I was trying to accomplish) They made a claim but failed to back it up when asked, leaving me stuck and clueless as to how to solve the issue or what the problem was other than MS will do it again.

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