Network Associates / Ebay Suckage

[Paymaster]

So I picked up a brand new, legal, retail copy of McAfee VirusScan free after rebate. I've already got Norton Anti-Virus installed, so I figure, "eh", I'll sell the McAfee on Ebay and make a cool $25.00.

The item was up for two days, and was at $16.00, when Ebay shut it down with the folowing mail:

We would like to let you know that we removed your listing:

3666601879 McAfee VirusScan 2004 ver 8.0 Anti-Virus Software NEW

because the intellectual property rights owner notified us, under penalty of perjury, that your listing or the item itself infringes their copyright, trademark, or other rights.

We have credited any associated fees to your account. We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction.

If you relist this or any other similar items on eBay, your account likely will be suspended.

If you believe your listing was ended in error, or have questions regarding the removal of this listing, please contact the intellectual property rights owner directly at:

Network Associates, Inc.
[email protected]

eBay is available to answer questions, but since it is the rights owner that requested the removal of your listing(s), we encourage you to contact them first.

For more information on eBay's cooperation with rights owners through the VeRO Program, and a list of rights owners that have created About Me pages, please visit:

http://pages.ebay.com/help/confidence/vero-removed-listing.html
http://pages.ebay.com/help/community/vero-aboutme.html

Thank you for your cooperation.

Regards,

Customer Support (Trust and Safety Department)
eBay Inc


So I go dig through the links there, and find that McAfee & Ebay will shut down any McAfee item for sale that has the UPC code removed.

How is this violating any copyrights?

I wrote a very sincere email to the address listed asking for more information. I also asked him to point me to the license agreement, which is not in the box as their web page states. (But the CD says that you must read it before you break the seal. Go figure.)

Now, I'm not gonna go postal about this or anything... I've got much bigger things in my life to deal with than a stupid auction, but I just feel that this is really, realy lame. The one thing I am going to try, is the "If you do not agree to the terms of the license agreement, you may return the software to Network Associates for a refund of the purchase price." This text is in most license agreements, and if it is in the McAfee one, I'm going for it. They will probably come up with a lame reason to not offer it, but at least I will give them a chance.

After that, I will boycott McAfee (I don't use them anyway) and move on with my life.

[Cubsfan]

Interesting. Let us know how this one turns out. I always find it funny how they want you to read the agreement that's on the CD before opening the case to the cd.... :)

[Paymaster]

So.. this guy cancels your auctions within a day of listing, but doesn't respond to emails after three days. I ratted him out to Ebay, and got a response from him almost immediately after getting a response from ebay that basically said "if you stil don't hear from him, let us know."

Here was his reponse:

Once the End User License Agreement (EULA) is accepted, which you did in removing the UPC and proof of purchase, the license is non-transferable. This means that any attempt to sell the software is distribution of intellectual property without license and is a violation of both the EULA and US copyright law punishable by up to $150,000 per incident.

Shawn Stephenson
Network Associates, Inc.
Manager, North America Anti-Piracy and Compliance


RIGHT

Here was my response to him:


Actually, the end user license agreement specifically states that the license is transferable. Here is a quote:

Restrictions: You may not rent, lease, license, or loan the Software, but you may transfer your rights under this Agreement permanently, provided you transfer this Agreement, the Software and all accompanying printed materials, retain no copies, and the recipient agrees to be bound by the terms and conditions of this Agreement.

Can you tell me where the EULA says that the software is not transferable?



I'm still sure that this is going to end up going nowhere. Ebay basically says that this guy swore under penalty of perjury that auctions he closes are violating copyright... so unless McAfee backs down, this goes nowhere. ('cause again, I'm not dedicating my life to this fight or anything. It really does piss me off though.)

[cheapie]

no dude. keep fighting. this is fascinating!

[Paymaster]

I've also been working with McAfee online support, trying to get something I can use against Mr. Stephenson.

I emailed a detailed question about what constitues accepting the EULA. I got a response with a copy of the EULA.

I emailed back and explained that he didn't actually answer my question. He responded that he didn't know that answer, and suggested another support address that may be able to help.

I emailed the other support address. I included the original detailed question, and added an aside of "Please do not send me a copy of the EULA, I have already read it."

I got a copy of the EULA in response.

I've now responded to that mail, asking again that they answer the original question.
:(

[Jeffbx]

Paging Whitak... legal question for Mr. Whitak...

Sounds like you have a pretty durn good argument there. Make sure you keep ebay in the loop on this one, since I'm sure there are a lot of auctions that could be affected by this.

You might get a better response if you send your question via postal mail, and send a CC: to all the execs you can find at McAfee, the bozo who pulled your auction & also ebay.

[Paymaster]

I've kept eBay in the loop, but all they say is that this guy "signed a document certifying under penalty of perjury" that he is only shutting down illegal auctions. It's understandable really, eBay doesn't want to get in the middle of all this (but yeah, I keep them in the loop).


Anyway, I got a response from this guy: he sent me a copy of the McAfee EULA that differs from the one I found on the McAfee web site. This EULA does say that the software is non-transferrable. I pointed him directly to the one I found on the web, and he claims that it does not apply to retail boxed items- he says it only applies to the download versions.

I'm quite sure that he's wrong. Here's where I need your help! I don't want to break the seal on my CD to get to the license agreement, but there is no license agreement in the box other than the one on the CD! If anyone has a retail (not corporate) copy of McAfee VirusScan (preferably version 8.0), and can start the installation just to get the license agreement, I really need to know if it matches mine (quoted above) or his (which says the software is not transferable at all). If it is possible to cut-and-paste it in it's entirety, that would be best. PM me or post it up here!

[Cubsfan]

Did you call this number?
Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Company for any reason, please call (408) 992-8100, fax (408) 720-8450, or write: McAfee Corporation, 535 Oakmead Parkway, Sunnyvale, California 94085. http://www.mcafee.com.

Besides from that fact, it doesn't matter what's in the EULA! You haven't agreed to anything if you didn't break the seal.

Also, some interesting reads:
http://www.saveateagle.com/firstsale.html

[ceeka]

I have McAfee Internet Suite 2004 and it has a EULA in pdf format. I can Email it to you as an attachment (72k) if you want to PM me your address.

I did read the first part of it and it does say that it is non-transferable.

[Jeffbx]

Originally posted by Cubsfan

Besides from that fact, it doesn't matter what's in the EULA! You haven't agreed to anything if you didn't break the seal.


That's a good point... if it's a sealed copy, then they don't have an argument against you. At least under the EULA, that is. However, they might pull out a different set of rules about who can sell the software.

[Cubsfan]

Originally posted by Jeffbx


That's a good point... if it's a sealed copy, then they don't have an argument against you. At least under the EULA, that is. However, they might pull out a different set of rules about who can sell the software.

I have a hard time believing that there would be any way to sue someone for selling an unopened piece of software. (Although, somehow, I wouldn't be suprised if someone, somewhere, has been sued).

[Paymaster]

Originally posted by ceeka
I have McAfee Internet Suite 2004 and it has a EULA in pdf format. I can Email it to you as an attachment (72k) if you want to PM me your address.

I did read the first part of it and it does say that it is non-transferable.

Well, now that you have confirmed it, that's all I need. Thank you! I think that it's really crazy that you can't get the actual EULA anywhere without installing the software...

I guess now my recourse is going to be to call McAfee and tell that I do not accept their EULA, and see if I can get a refund. Even though the guy that canceled my auction says that I have already accepted it, I might be able to find someone who feels otherwise. We shall see...

As for all the legal discussions, I completely agree that this could be challenged in court... but we must keep in perspective that it is a $50.00 piece of software, that I actually picked up with a rebate... not something to go to court over.


Originally posted by Cubsfan


I have a hard time believing that there would be any way to sue someone for selling an unopened piece of software.

The argument seems to be that you haven't purchased the software, but instead you have purchased a license to use it. The license is what is non-transferrable.

It would be hard to apply this anywhere else though. Imagine trying to sell a used book, and being told that you can't, because the "license to read it" is non-transferrable. :rolleyes:

[Cubsfan]

Originally posted by Paymaster

The argument seems to be that you haven't purchased the software, but instead you have purchased a license to use it. The license is what is non-transferrable.

http://www.linuxjournal.com/article.php?sid=5628

I don't think it'd hold up in court if it was challenged. But, I think you're totally right, for a $50 piece of software it's not worth it (unless you want to make it a crusade :) )

Good luck!

[look_ma]

Try relisting it as unopened with out a box. I do not know what else you read when you were reading "why ebay thinks they are special rules", maybe you can try that.

[Paymaster]

Originally posted by look_ma
Try relisting it as unopened with out a box.

Ebay says that If I relist the item (or another like it) without permission from Network Associates, my account will be suspended- so I don't want to try listing it without the box.

I've thought about relisting it as "new in sealed box", and then just letting the high bidder know that the UPC is cut off (giving him a chance to back out). This just seems "dishonest" though. That's not my style. I'm going to keep trying to work it out with McAfee.

...and I'll keep y'all posted.

[ufcrusher]

Personally, I think you DONT have a leg to stand on. For most software you need to have a reseller's license from the company, which allows you to sell the item. On top of that, even if you do have a resller's license, you couldnt sell the box sans UPC.

On a lot of rebate forms, by submitting them you are agreeing to the EULA, I dont know about the McAfee rebate form, but its probably part of it. At this point you are not out of any money, thanks to the rebate, and you just happen to have an extra piece of software laying around. I agree it might seem unfair, but these rules exist to protect the copyright holder.

[Paymaster]

Originally posted by ufcrusher
Personally, I think you DONT have a leg to stand on.

What about the fact that:
The EULA is not available without installing the CD. I could not find the EULA posted on NetworkAssociates.com, and the EULA posted on mcafee.com (and sent to me by mcafee support) does not match the EULA on the CD itself. The EULA is nowhere in the box other than on the CD. McAfee provides no reasonable means of determing the EULA without first agreeing to it.

McAfee provides no way of informing the customer, other than directly asking, which took four attempts with techical support, that they are accepting the EULA. I keep a copy of all my rebate forms, and neither of the two rebates for this product mentioned that by sending in the rebate I was accepting the EULA. If either had, I would shut up immediately!

While I value your opinion as a lawyer, and admit that I don't know jack about the law, I appeal to your common sense. To me, this is like being ticketed for speeding, when there are no posted speed limits, and your calls to the police station are answered with "just follow the posted speed limit".

[ramazank2]

Have you thought about selling something else and give this software away as a freebee. I have seen someone doing the same thing with a promotional software they wanted to sell but ebay shut them down so the legal way to do it was to sell a Tshirt with a free gift(ie the software)

[Paymaster]

Originally posted by ramazank2
Have you thought about selling something else and give this software away as a freebee.

Hmmm... good idea, but McAfee could still shut it down. Under their EULA, you can't even give the software away!

[ramazank2]

Originally posted by Paymaster

you can't even give the software away!



Thats funny!

[look_ma]

Originally posted by Paymaster
Under their EULA, you can't even give the software away!

Wonder if you can pay someone to take it away?

[whitak24]

my understanding is that the general legal doctrine on this (i don't have the specific cases at my fingertips) as articulated in the iomega case is that software companies
a.) do not have to put the EULA on the outside of a package or in a location where you can read it prior to opening the package
b.) can specify what constitutes "acceptance" of the EULA. (so if you they say cutting off the UPC constitutes acceptance, then it does).

HOWEVER, you should have the right to return the item if you do not agree with the EULA. and since the EULA is not accessible without opening the package, you should be able to get a refund even though the package is open.

the only legal argument you would have is to challenge the validity of the EULA provision prohibiting transfer or sale of the license. unfortunately, courts and legislators are increasingly giving owners of intellectual property unlimited ability to extend draconian limitations on what you do with that IP once you buy it.

*****please note: none of this consitutes legal advice. if you want valid legal opinions, please speak to a licensed attorney in your area******

[ufcrusher]

Whitak..you are learning well........no free legal advice and make sure you ALWAYS place your disclaimer if you are providing what can be constituted as advice.

[look_ma]

Originally posted by ufcrusher
Whitak..you are learning well........no free legal advice and make sure you ALWAYS place your disclaimer if you are providing what can be constituted as advice.

F that, it is my sig now!!!

[K2]

so what happened with this?

[Paymaster]

Well, this (http://www.gotapex.com/forums/showthread.php?t=73726) happened, so my fight with Network Associates got de-prioritized.

In general, though, whitak informally confirmed that software companies can legally do this. While I think that is BS, at least they are not writing their own laws. ceeka comfirmed that the EULA that Shawn Stephenson sent me was the same one that is on the CD. While I think it is more BS that there is absolutly no way to ge the EULA without putting the CD in my PC, (the EULA on the McAfee wheb site, and the one sent to me by McAfee support are both "incorrect"), at least Mr. Stephenson isn't lying to me, as I originally thought that he must be.

My next step is going to be to write a very detailed letter to McAfee execs stating why I will never buy their software again. That will then be the end of it. As I mentioned in my original post, "I've got much bigger things in my life to deal with than a stupid auction."

I still have the software. I will probably use the CD for a coaster. My AOL CDs are starting to get worn out.

[Cubsfan]

I still have the software. I will probably use the CD for a coaster. My AOL CDs are starting to get worn out.

Or send the CD to the exec's in a sign of how much you hate it ( cut it in two for better effect) :)

[ApltnHkyMutt]

They have to much time on there hands if they can surf ebay to see who's selling there stuff. thats so lame

[Paymaster]

Or send the CD to the exec's in a sign of how much you hate it

That would be transferring the software. That is in violation of the EULA!