Illegal Software Purchases on eBay, Craigslist and Amazon.com can lead to infringement claims.

Introduction

One thing that pops up time to time while handling software compliance audits is the company that purchased software online from retailers such as Amazon.com, Craigslist or auction sites like eBay.  This might sound like a legitimate arms length transaction, but this can lead to legal troubles where:

(a) the software being sold is subject to a licensing agreement that prohibits anyone from selling the software (thus, the copy of 3ds Max, Revit, LT, or Autocad is illegally being sold and the “first sale doctrine” is not applicable),

and

(b) the software is allowed to be sold or transferred (ex. a company is selling all its assets, which MIGHT allow a transfer subject to Autodesk, Microsoft or some other publisher's approval). We have talked about common grounds to transfer a software license on another post but prooper procedures for transferring the licenses were not be followed (ex. not sending a copy of the EULA with the transfer, and documenting in writing that the purchaser intends to honor the terms of the EULA, which should also be transferred as part of the transaction.

Finally,

(c) there are other times when a company buys a $4,000 copy of Autocad or Revit perpetual, for let's say $250.  Obviously this looks fishy, and it may wind up being that the software acquisition is deemed invalid (and treated as willful copyright infringement) because it was not purchased from a valid Autodesk resellers let's say.

When any of the above situations happen, the lawyers from their main intellectual property law firm for Autodesk – Donahue Fitzgerald, LLP – might get notice of this and send you a demand for audit and notice of potential copyright infringement.  This is often where our company gets involved. When this happens, a simple purchase on the internet can turn into a potential case of willful copyright infringement, something which most people are not aware of.

How to verify Autodesk Autocad and Revit software is legal

When it comes to Autodesk software, there is a way to verify if the software being offered for sale is legitimate or not.  By simply going to the www.autodesk.com website scrolling to the bottom and clicking on Find A Reseller, (partner search) a party can try to determine whether a reseller is authorized or not to sell Autodesk software.  If you are purchasing from a party that is not legally authorized to sell their software, you could be setting yourself for receiving a software audit letter.

Another way to search to confirm the legality of software is by contacting Autodesk by telephone at various telephone numbers including (855) 301-9562, a party can also try to determine the legality of Autodesk software licensing including by providing the serial number for the product to a representative so they  can search.  Each serial number for a product can be found by accessing the “About” section of the “Help” menu after each installation has been executed and consists of a three-digit number followed by a hyphen followed by an eight-digit number. 

eBay Policy on software infringement

According to their website:

The following items are restricted or prohibited because they may infringe on intellectual property or other proprietary rights of third parties:

1. Academic, beta, and OEM software

2. Celebrity material, including: Autographed items Faces, names, and signatures

3. Certain branded accessories, packaging, warranties, or other items offered without the accompanying branded product Media, including:

(a) Digitally delivered goods Movie prints (35 mm, 70 mm)

(b) Promotional items

(c) Public domain media

(d) Recordable media

Also not allowed are Beta software Bootleg recordings Items that may enable unauthorized copies, including: Hardware or software that would enable duplication of copy-protected material Modchips, game enhancers, and boot disks Replicas, counterfeit items, and unauthorized copies.

Craigslist policy on selling illegal software

Here is some information I found on Craigslist website

Here is a partial list of goods, services, and content prohibited on craigslist:

1. weapons; firearms/guns and components; BB/pellet, stun, and spear guns; etc ammunition, clips, cartridges, reloading materials, gunpowder, fireworks, explosives recalled items; hazardous materials;

2. body parts/fluids;

3. unsanitized bedding/clothing

4. prescription drugs, medical devices; controlled substances and related items alcohol or tobacco;

5. unpackaged or adulterated food or cosmetics child pornography; bestiality; offers or solicitation of illegal prostitution pet sales (re-homing with small adoption fee ok), animal parts, stud service endangered, imperiled and/or protected species and any parts thereof, e.g. ivory false, misleading, deceptive, or fraudulent content; bait and switch; keyword spam

6. offensive, obscene, defamatory, threatening, or malicious postings or email anyone's personal, identifying, confidential or proprietary information food stamps,

7. WIC vouchers, SNAP or WIC goods, governmental assistance stolen property, property with serial number removed/altered, burglary tools, etc ID cards, licenses, police insignia,

8. government documents, birth certificates, etc US military items not demilitarized in accord with Defense Department policy

9. counterfeit, replica, or pirated items; tickets or gift cards that restrict transfer lottery or raffle tickets, sweepstakes entries, slot machines, gambling items spam; miscategorized, overposted, cross-posted, or nonlocal content postings or email the primary purpose of which is to drive traffic to a website postings or email offering, promoting, or linking to unsolicited products or services affiliate marketing; network, or multi-level marketing;

pyramid schemes any good, service, or content that violates the law or legal rights of others (this would seem to include software that is not legally licensed to be sold per the terms of the licensing agreement).

Amazon.com policy on selling infringing goods

Examples of Prohibited Listings Counterfeit merchandise on Amazon.com include:

1. Products offered for sale on Amazon.com must be authentic. Any product that has been illegally replicated, reproduced or manufactured is prohibited. Unauthorized and unlicensed merchandise:

2. All items offered for sale on Amazon.com must be commercially produced and authorized or licensed for sale as a retail product. Read our rules for selling textbooks. (For exceptions to this policy, see Collectible Books Requirements.)

3. Recopied media: Media products (books, movies, CDs, television programs, software titles, video games, and so on) that have been recopied, dubbed, duplicated, or transferred without permission of the rights holder are illegal to sell and are prohibited. This includes: Books: Unauthorized copies of books are prohibited.

4.  Music: Bootleg copies, unauthorized live concerts, unauthorized soundboard recordings, unauthorized merchandise, and so on, are prohibited.

5.  Movies: Unauthorized copies of movies in any format are prohibited. Unreleased/pre-released movies, screening copies, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorized props are also prohibited. Photos: Unauthorized copies of photos are prohibited. Radio programs and concerts:

6.  Unauthorized recordings or copies of recordings of radio programs are prohibited.

7.  Software: Recopied or duplicated software in any format is prohibited. Academic, OEM, back-up, fulfillment, promotional, beta (pre-release), unauthorized freeware/shareware, and softlifted versions of software are prohibited. Read our rules for selling software.

8.  Television programs: Unauthorized copies of television programs (including pay per view), programs never broadcast, unauthorized scripts, unauthorized props, and screening copies are prohibited.

9.  Video games: Video games sold on Amazon must be full retail versions. Recopied and transferred video games are prohibited. Mod chips, silver disks, video game emulators, Sega boot disks, game enhancers, unauthorized video game compilations, unauthorized bundles of video game products, and unauthorized accessories are also prohibited.

News & Resources

1.  2 arrested for selling pirated goods on Craigslist
2. Amazon.com wins jury verdict re counterfeit goods
3. Selling a printer then sued for $30,000
4. Dart v. Craigslist – DCA
5. Is online retailer liable for infringing acts of vendor?

Contact a software lawyer

If you need help with a software law issue or social media dispute involving (facebook, twitter, youtube, Amazon, eBay, Craigslist, Etsy, or other site), give us a call.  We can help with infringement letters, copyright settlements, DMCA litigation, cease and desist letters, subpoena response to ISP (, and software licensing audits.  Call us at (877) 276-5084.  

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