December 15, 2003

eBay confuses free software and piracy

Author: Joe Barr

I give eBay credit for trying to do the right thing. In 1999, James Love documented on the Consumer Project for Technology mailing list how Microsoft was forcing eBay to remove items from auction if they bore the Microsoft name. According to Microsoft, consumers have no right to sell Microsoft software that they have legally purchased. eBay responded by pulling all auctions for Windows and warning those who had tried to sell it of the legal consequences of software piracy. But this is different. They are pulling auctions for free software. It's because of their "piracy policy." At least that's what they're telling Russ Phillips.

Phillips wrote to us late last week to inform us of the situation. He sent along copies of mail he had written to eBay as well as what he had received from them. Phillips said in his email:

A while ago, I put an CD-R on E-Bay for auction. I was careful to point out that it was a CD-R that I had burned, that it was open-source software that anyone could download for free (but at about 70MB it's a long
download over dial-up). I also pointed out that it had some extras that I'd found, and that all the extras were also open source and freely available to download.

I sold the CD-R, got positive feedback, and everyone was happy. I then put up a second auction. This time, E-Bay informed me that I had violated their

Unauthorised Copies Policy and that
they had removed my auction.

He immediately wrote back to tell eBay that is free software, and that its license expressly permits copying and distribution. He added that the same was true of the other items on the CD. He received no answer. He wrote eBay again. Still no answer. And again. Still no answer. That's when Phillips decided to try writing news organizations instead of eBay.

I called eBay after we had received Phillips' email and spoke to their public relations department about the incident. They promised to get back to me as soon as possible. And in fact they did call back. They wanted to know if I had the specific item number for the auction in question. I provided the number, but didn't hear from them again.

The original situation was bad enough. Microsoft and eBay teamed up to strip consumers of any rights at all to the Microsoft products they had purchased. I suppose consumers are fortunate that Microsoft hasn't decided (yet) to enforce a dress code that must be met before they can use the software.

But this is worse. Much worse. eBay taking down auctions of free/open source software because of their "piracy policies" is stupid, but to refuse to admit they are making a mistake, and refusing to rectify it, is even stupider.

In this case, it's hard to say if the problem is one of overzealous enforcement or of the policy itself. Among other things which cannot be sold according to eBay policy, are "backup" and "archival" copies of software, with absolutely no consideration at all given to the licensing terms.


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