Is it legal to install software onto a used laptop and sell without the legit software license keys?

[ezcalc]

I recently purchased a used laptop and a set of software on ebay.

The item listing mentions the" Microsoft Office Full Version" and "Symantec AntiVirus" as part of the sale.

As it turned out, the seller did not have the legit keys to the software.

So I filed a dispute, but Paypal made the decision in favor of the seller, who apparently tried to sell the pirated software.

What legal recourse do I have to resolve this situation at this point?

I'd appreciate your help advance.

[ezcalc]

I bought a used laptop with MS Office and Symantec Anti-Virus on ebay.

As it turned out, the software was not legit for sale.

However, Paypal ruled in favor of the unscrupulous seller.

Where is the Paypal buyer protection?

[afantiques]

You best course of action is to install OpenOffice, which is free and quite capable,and a decent free anti virus and malware program. Then you will have what you wanted, for all practical purposes without wasting any time on 'legal redress' which you will not get.

[ezcalc]

I am well aware of the software in the public domain. But here the real issue is that I paid for the software that is not sell-able, or illegal software. Further, Paypal finds no issue in the misconduct of selling the software illegally.

[kxeron]

Hi,

IT Professional here (I have experience with systems administration, so I have experience with software licensing on an enterprise scale),

This is a common issue unfortunately. According to most home software license terms, transferring a license requires the full software package to be provided to the recipient and for any existing installations of that software to be destroyed on any computers not a part of that transfer. Unfortunately many piracy operations get away with these sorts of scams on eBay since there's doubt that the sellers can cast: "I didn't know it was pirated", "It was lost in a move" or "I got it this way, I just fixed it up and re-sold it" or similar excuses. Neither eBay nor Paypal have software licensing experts as part of their adjudication process so they don't understand why legitimate software is a must.

There's some things you can do however. If the seller sells computer parts routinely, it may help prevent other people from being roped into this sort of situation of piracy by reporting the seller to the Business Software Alliance:

https://reporting.bsa.org/r/report/add.aspx?src=us&ln=en-us

The Business Software Alliance (BSA) is an authoritative group that is designated by the big names in the software industry (including, but not limited to Microsoft and Symantec) to combat software piracy. The BSA in their investigations can get in contact with eBay and determine if the seller has other complaints/cases against them OR use prior complaints against the seller and if so, the BSA can ask eBay to take down any listings from that seller containing software provided by BSA members and have eBay prohibit the seller from re-listing them or any software in future through legal means. Front-line eBay employees (including the ones who may have handled your case) may not understand the importance of proper licensing but those in eBay who deal with legal complaints will.

In the meantime, keep the received laptop, any packaging, discs and so forth as-is as a representative from the BSA may get in contact with you asking for further details on the case and may require photos and further items.

Now, that said...

Here's a checklist of things in future you can ask a seller to determine if their sale is legitimate (be sure to communicate via eBay's messaging system and require response in kind for records purposes):

1. Is the software provided retail or OEM?
   If it's retail, it should come with a shiny/colourful box/folder with disc(s), if it's OEM it should at minimum come with a folder with a license key, or a license sticker on the computer itself or proof of purchase.
   
2. Does the included software come with factory-pressed discs produced by <Company/ies>?
   Not all software these days comes with discs but if it's retail software it generally will. If they say that they lost the discs and that the software's just already installed if retail — Red flag, you're not getting the whole package you're legally entitled to and they have just breached the software license agreement (EULA) or trying to sell pirated software.
3. Will I receive an original Certificate of Authenticity or a folder provided by <Company/ies> with a legal license key or original store proof of purchase with the computer and/or discs?
   This will verify you're receiving the software license, if they can't locate this or said that they lost it — red flag, again they have breached the EULA by not adhering to the terms of license transfer or again, trying to sell pirated software.
4. Is there any included burnt CDs or DVDs (e.g. CDRWs, DVDRWs)?
   If they say that there is, red flag. Back out of the purchase promptly, if they said there isn't and you receive some, there's case against them.

By rights, if a seller "lost" any component to the software licensing (discs, license keys, etc), they are not legally permitted to sell that computer/etc anymore with that software included as they can't comply with the software licensing transfer provisions where the whole package has to be transferred. This is to protect the recipient.

If you receive differently than the above questions indicate, you'd be able to report a SNAD (Seriously Not as Described) complaint to eBay and inform them you didn't receive what was promised (and the legal ramifications thereof including that you can get in trouble for having potentially pirated software when you were promised legit) and then eBay wouldn't have to play software licensing expert to understand that something went wrong when you didn't receive a retail box when records stated that one was promised for instance, or received no discs when the software was retail, etc..

I hope this helps.

[afantiques]

I am well aware of the software in the public domain. But here the real issue is that I paid for the software that is not sell-able, or illegal software.

By all means do all the stuff suggested above, but generally speaking shrugging the shoulders and getting on with whatever you meant to do is more productive and ultimately less aggrevating.

[reallynicestamps]

Was your Dispute "Item Not As Described"?

Were you told to return the item to the seller?

Did you return the item to the seller?

Did you use a Delivery Confirmed service?

Paypal usually will not make a decision about counterfeits -- they don't have the expertise or the manpower. They just try to make the unhappy buyer whole. Which basically means pretty close to back where he started.

[ezcalc]

Please see the ebay item description by the seller as copy-pasted at the bottom.

Here is the fact:

I bought the laptop with BuyItNow, mainly attracted by MS Office and Symantec Anti-Virus included in the sale.

Again the software by the seller is not usable, let alone legit.

Today I received the Paypal's the following explanation for their ruling in the seller's favor, which doesn't make much sense to me.

"...The item purchased was the laptop. The software that is installed on the computer does not significantly affect the value and usability of the item. The two programs you stated are not required to operate the laptop and are therefore considered accessories and do not affect the items usability....."

[The seller's original eBay item description]

Up for AUCTION is Lenovo ThinkPad T430 (2350-A14)  8Gigs DDR3 Ram and 500GB Hard Drive.

Intel Core i5 3rd Gen.

Comes with windows 7 PRO (64BIT Ver.) with license sticker

Symantec Anti-Virus Corp. Ver. (FAST VIRUS FREE)

Microsoft FULL ver. OFFICE

Original Power Supply

Oversize Battery 70++

Spill Proof keyboard

Backlit Keyboard!

[ezcalc]

I learned a great deal from your kindly going over the area of software piracy in detail. Thank you so much.

[afantiques]

"...The item purchased was the laptop. The software that is installed on the computer does not significantly affect the value and usability of the item. The two programs you stated are not required to operate the laptop and are therefore considered accessories and do not affect the items usability....."

That seems unusually (for anything to do with ebay) reasonable to me.

PP have no way of knowing how much or little the software influenced your bid (personally, it would not have influenced mine at all, since I don't want the software anyway, I'd be buying the hardware only, and that is all that can fairly be said to be on sale. Since you have not mentioned it I asume the computer itself was as described.

[ezcalc]

I needed both laptop and MS Office then. Then wouldn't you buy both at a discount?

[ezcalc]

If you need certain software, then where do you go to get that?

[kxeron]

---

@afantiques wrote:

"...The item purchased was the laptop. The software that is installed on the computer does not significantly affect the value and usability of the item. The two programs you stated are not required to operate the laptop and are therefore considered accessories and do not affect the items usability....."

That seems unusually (for anything to do with ebay) reasonable to me.

PP have no way of knowing how much or little the software influenced your bid (personally, it would not have influenced mine at all, since I don't want the software anyway, I'd be buying the hardware only, and that is all that can fairly be said to be on sale. Since you have not mentioned it I asume the computer itself was as described.

---

In my beliefs, eBay and Paypal should assume all software using brand names is legitimate and if the software received is pirated or exhibits pirated attributes, it should be seen under the same category as receiving illegal/stolen goods (Without the proper licensing material, who knows where that seller got that key from, they could have stolen it from their employer or school!). eBay refusing to pursue the situation further can put the buyer into a position where they are potentially in possession of illegal goods that could land them in trouble. eBay not pursuing these situations en-masse can potentially put other buyers into a position where they may buy from the OP's seller as well, but are unaware they are operating unlicensed software and run it thinking everything's okay.

This can be a problem as if it's say a copy of Microsoft Windows. Microsoft may see the seller's pirate license key being used improperly and proceed to activate the Windows Genuine Advantage / Windows Activation Technologies killswitches installed into every copy of Windows from Windows XP Service Pack 3 onwards. These functions essentially enforce verification of Windows licenses against Microsoft's own databases, and failing verification, Windows goes into a "stripped down" mode and possibly eventually not being able to login at all.

A scam seller can take advantage of eBay's policies and proceed to install a pirated copy of Windows onto as many computers as they can and sell the computers. The computers will be deemed by eBay as "working" and since the core product is "working" they will close any cases, even if some months down the line this may see the computer being rendered in most cases inoperable without intervention of an IT professional who will need to charge for a legitimate license (that should have been provided in the original sale). And since this would be outside of eBay's claim time there'd be no action taken against the seller anyways.

Alternately if a *BUSINESS* buys computers from eBay (say a small shop that can't afford direct contact with an OEM like Dell or HP), this can have more dire consequences for them where if an organization like the BSA finds out that that shop is running unlicensed software, it can lead that business into legal issues, including massive fines.

So no, this is not a "reasonable" response, this is a lazy response to avoid the complexities of software licensing and ensuring people get legitimate things, but too if this is eBay's general operating procedure this can see eBay itself thrown into a situation of liability. Say they are seen by a big-name software company as not doing enough to ensure software sold on the site is legal. The software company wouldn't be bound to "render eBay harmless" and could pursue a civil suit against eBay if there are documented complaints of sellers selling unlicensed software and nothing being done about those sellers in general.

To sell paid-for software without licensing material is to put a consumer in direct danger.

[ezcalc]

Having experienced Paypal CS in my dispute, now I strongly feel that Paypal staff should be educated on the important points you have made regarding the software piracy.

Now my major frustration comes from the fact that for one single case, I get a different answer from each different Paypal staff with whom I get a contact. I see the anomaly as an ostensible sign of their struggle in defending their unprofessional mistake in the obvious case: simply Paypal shouldn't have sided with the seller who sold the pirated software on the outset.

Now I received another reply from Paypal just now, basically saying that Paypal doesn't cover software piracy.

Please see below for the baffling reply:

"......We completed our investigation for your claim. Unfortunately, PayPal Buyer Protection does not cover this claim.
PayPal Buyer Protection only applies to PayPal payments for certain tangible, physical goods that can be shipped. We are unable to grant you a refund because your payment was for one of the following items:

• Intangible items, including Digital Goods
• Services
• Real estate, including residential property
• Businesses
• Vehicles, including motor vehicles, motorcycles, caravans, aircraft and boats
• Deposits made for vehicles or other items
• Custom made items
• Travel tickets, including airline flight tickets
• Items prohibited by the PayPal Acceptable Use Policy
• Items which you collect in person, or arrange to be collected on your behalf
• Items that violate eBay’s Prohibited or Restricted Items Policy
• Industrial machinery used in manufacturing
• Items equivalent to cash, including prepaid or gift cards
• PayPal Direct Payments
• Virtual Terminal Payments
• Personal Payments
• Splitting a payment into multiple payments to pay for one item

...."

[kxeron]

---

@ezcalc wrote:

Having experienced Paypal CS in my dispute, now I strongly feel that Paypal staff should be educated on the important points you have made regarding the software piracy.

Now my major frustration comes from the fact that for one single case, I get a different answer from each different Paypal staff with whom I get a contact. I see the anomaly as an ostensible sign of their struggle in defending their unprofessional mistake in the obvious case: simply Paypal shouldn't have sided with the seller who sold the pirated software on the outset.

Now I received another reply from Paypal just now, basically saying that Paypal doesn't cover software piracy.

Please see below for the baffling reply:

"......We completed our investigation for your claim. Unfortunately, PayPal Buyer Protection does not cover this claim.
PayPal Buyer Protection only applies to PayPal payments for certain tangible, physical goods that can be shipped. We are unable to grant you a refund because your payment was for one of the following items:

• Intangible items, including Digital Goods
• Services
• Real estate, including residential property
• Businesses
• Vehicles, including motor vehicles, motorcycles, caravans, aircraft and boats
• Deposits made for vehicles or other items
• Custom made items
• Travel tickets, including airline flight tickets
• Items prohibited by the PayPal Acceptable Use Policy
• Items which you collect in person, or arrange to be collected on your behalf
• Items that violate eBay’s Prohibited or Restricted Items Policy
• Industrial machinery used in manufacturing
• Items equivalent to cash, including prepaid or gift cards
• PayPal Direct Payments
• Virtual Terminal Payments
• Personal Payments
• Splitting a payment into multiple payments to pay for one item

...."

---

What Paypal/eBay likely isn't understanding is that when you purchase software, you are not purchasing the software itself, the "digital goods" are still owned by the software company as per the EULA. What you are actually buying when you buy software is the license and the physical media. The license is usually a physical good that is a proof of purchase, definitely when it comes to Microsoft paid-for software where there's a Certificate of Authenticity regardless if it's preinstalled, download to install or on a disc.

If you don't get the proper licensing/proof of software purchase it's the equivalent of not getting the software at all and potentially as I've said before: receiving stolen goods that you can get in trouble for obtaining. On top of this, the transfer of ownership hasn't been completed meaning what's on that computer is somebody else's (both the software and the license).

In today's world where products are increasingly surrounding software AND that software companies are upping their game in anti-piracy initiatives eBay should not leave consumers holding the bag at all, no matter how hard it is to adjudicate these cases. eBay and their subsidiaries do not understand that their current policies do not adequately ensure people are receiving items that won't come back and bite them.

If a seller routinely sells:

• Software without licensing information or proof of purchase (e.g. original store receipt or original invoice).
• Retail software comes preinstalled without discs or source media
• Software comes on burnt CDs/DVDs

and eBay receives multiple complaints about this regarding a seller, that seller should subsequently be restricted from selling anything with software. If they want to continue to sell computers, they'll have to sell with a totally blank hard drive and indicate so in listings.

With computer stores, if a store sells illegitimate software you can report the whole store to the BSA and the BBB (Better Business Bureau) to warn others. On eBay since everything largely is "in-house", it is eBay's sole responsibility to take reports seriously and act when trends indicate questionable activity to act upon that data.

eBay is not immune from the DMCA which is a very real thing in the jurisdiction in which eBay operates (the United States). If a software company deems eBay isn't doing enough to combat software piracy is being combated, they could easily issue a bulk notice (think how many Youtube videos get taken down on a routine basis) against all listings that contain their software on the eBay site.

[ezcalc]

I appreciate your informative comment.

Now I just got yet another version of rationale from Paypal as follows:

"... According to our record, I can see that your seller has issued partial refund via transactions 7D1353163*******J & 9H4419952*******0. 

As a result, this claim was closed in the seller's favor. ..."

It's hard to believe the kind of nonsense I'm going though now is with such an established institution in North America as Paypal.

Let me explain the situation a little bit.

The seller agreed to free shipping for buying with BIN, which I did.

I needed the laptop in a hurry, so I went ahead and paid the shipping as per the original listing just to facilitate the transaction by removing the hassle and time interval of the seller issuing the invoice and all that.

I was pretty sure that I could afford to make the decision with the confidence in Paypal's buyer protection.

The shipping was $37.77, but the seller refunded only $20 for the reason of distance and the extra shipping cost.
But later the seller refunded the rest upon my protest.

(At that point, I had a queasy feeling about the integrity of the item the seller had sold.)

That's how the partial refund has been made twice, but the seller somehow managed to trick Paypal into thinking that the seller had already compensated for the software deficiency.

It is a peeve of mine that I have had to explain this to Paypal more than once or twice already.

Now we are back to square one and I' curious as to what the next excuse from Paypal for closing the case might be.

[ezcalc]

Here is the latest reply from Paypal today, going back to their previous position that there will be no Paypal protection.that 

"...We completed our investigation for your claim. Unfortunately, PayPal Buyer Protection does not cover this claim. Software is considered an intangible as it is not an actual item...."

As a side note: now it explains why the seller escalated the dispute on his/her own at too early a stage.

At first, I thought that the seller was too confident or foolhardy in an effort to defend his/her apparent misconduct.

But the seller may very well be savvy about Paypal's position on the issue of software piracy.

I guess that the moral of the story is: Don't buy any software or machine with software on eBay.

In the meantime, the credit card company now is getting involved in this dispute, which was owing to the recommendations from a Paypal rep I consulted as a way to initiate separate dispute.

Still my intuition is firm that in no way Paypal should/would take sides with the illegal activities that'd put innocent eBay buyer at risk.

I also inquired Paypal about any action taken against the seller about the self-professed software piracy, but got no reply yet.

[kxeron]

---

@ezcalc wrote:

Here is the latest reply from Paypal today, going back to their previous position that there will be no Paypal protection.that 

"...We completed our investigation for your claim. Unfortunately, PayPal Buyer Protection does not cover this claim. Software is considered an intangible as it is not an actual item...."

As a side note: now it explains why the seller escalated the dispute on his/her own at too early a stage.

At first, I thought that the seller was too confident or foolhardy in an effort to defend his/her apparent misconduct.

But the seller may very well be savvy about Paypal's position on the issue of software piracy.

I guess that the moral of the story is: Don't buy any software or machine with software on eBay.

In the meantime, the credit card company now is getting involved in this dispute, which was owing to the recommendations from a Paypal rep I consulted as a way to initiate separate dispute.

Still my intuition is firm that in no way Paypal should/would take sides with the illegal activities that'd put innocent eBay buyer at risk.

I also inquired Paypal about any action taken against the seller about the self-professed software piracy, but got no reply yet.

---

This is rather insulting on paypal/eBay's part.

This sort of decision/policy sets a dangerous precedent where particularly foreign sellers in countries where software piracy is a norm and isn't really combated could sell pirated software along with token hardware in order to drive people to buy the hardware.

I'm glad you got the credit card company involved as they may take interest in money going to potentially illegal goods (no matter how eBay spins it, software is still a product under the law).

I'm going to talk with some of my industry colleagues about this issue and see what they have to say as frankly, this is a dangerous issue that needs more discussion. I'll be definitely interested in the response however of Paypal/eBay outside of the context of their Buyer Protection programmes, please keep us up to date.

[ezcalc]

I managed to resolve the illegal software issue with the seller at this point.

But the issue of faulty Paypal policy remains unaltered.

I am seeing many ebay listings like"Microsoft office 2010 Pro Plus installed and Activated" that in fact offers no legit key.

For that type of fraud,  the current Paypal policy doesn't protect the innocent buy, simply because of the fact that the software item is not delivered in a physical form such as discs.

The lack of professionalism on the part of Paypal has been just staggering.

I'm determined to force the issue so that Paypal covers the software purchased in "intangible" form.