Legal Question in Intellectual Property in District of Columbia

Got a legal notice about a software that I listed on ebay, no sale made, but law firm is asking for $375. Should I pay or defy?

I listed a student version of a software on ebay (I did not know that student versions are not to be resold) and the listing was removed so there was no sale and I received no money. A law firm sent me a notice asking me to send answers to questions like how much money was made and also to include a check of $375.

I called them and said that I should not have to pay any money to them because I didn't make any sales and that I thought it was ok to re-sell student version but they said that I have to pay it regardless. They are just harassing me and want me to budge and pay them but I don't want to do that. If I did not make any money, there was no damage done to the software company.

I live 250 miles from NY where they are based, is it worth the hassle to deny the payment and face possible lawsuit proceedings?

Asked on 4/09/10, 6:36 am

2 Answers from Attorneys

Michael E. Hendrickson Attorney & Counsellor at Law
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Respond to their written questions, informing them that the listing was

removed from Ebay, no sale of the software was ever made and consequently you received no money from this exercise in attempted cyber-selling, and THEREFORE you have no intent whatsoever of

complying with their predatory demand for "a check of $375".

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4/14/10, 5:56 pm
John Mitchell Interaction Law
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As far as I am concerned, the owners of so-called "student" versions that are lawfully made are entitled to sell them without the permission of the copyright holder 17 USC 109(a)), but some major copyright owners have been able to persuade some dense judges that "software is licensed, not sold," so you can never "own" it. That's really rubbish, as the only question is who owns the disc. 17 U.S.C. 202 makes clear that "softtware" (as in a computer program - the intangible work of authorship) can be licensed, but the "software" (as in the disc that is a "copy" of the intangible work) is sold.

The pittance they are asking is pretty indicative that they really know you did not infringe anything. (Otherwise, they would be asking for something closer to the minimum statutory damages.) My guess is they would not sue for $375, but they are calculating that you would rather pay them $375 than pay a lawyer much more than that to tell them to go to .. wherever.

Of course, since I am not your lawyer, the bottom line is I can only tell you to consult a lawyer which, again, is going to probably cost more than the shake-down they appear to be asking.

Members of Congress get bucket-loads of money from the major copyright exploitation industries and, as a result, we have a Copyright Act that allows for these types of abuses, assuming the copy you wanted to sell was, in fact, lawfully made under the Copyright Act. In fact, if lawfully made, the prospective pruchaser is also injured by attempts, like these, that appear to raise antitrust concerns -- the copyright holders not only don't want you allowing people to enjoy the benefit of Section 109(a), but also don't want the price of used copies to put downward pressure on the price of new copies (just like used car prices put downward pressure on new car prices). What these fools fail to understand is that, just was people who buy new cars consider the resale value, the purchasers of new copies of computer programs are going to be more willing to part with their hard earned dollars if the resale value means something other than a shake-down letter.

Good luck.

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4/14/10, 11:41 pm

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