Olson & Cepuritis - eBay VERO Scam Artists Reply |
OK, perhaps they actually expect someone the believe this
claptrap, twisting of the law, and bizarre interpretation of the
DCMA and contract law. Bottom line: They failed to follow though on
their hollow threats and my items were relisted.Here's their email to me:Dear Mr. Drew, Thank you for your recent correspondence regarding DeVry/Becker Educational Development Corporation ("DeVry/Becker"). DeVry/Becker’s books, software, and other materials ("course materials") are not sold, either independently of or in combination with DeVry/Becker’s review course. Instead, DeVry/Becker grants its students a limited, non-transferable license to use its course materials for their individual studies, in conjunction with DeVry/Becker’s review course. Students agree (and are reminded during the course) to destroy the course materials after completion of the examination. We monitor auctions and sales, on eBay, Yahoo, and elsewhere, for infringement of our various clients’ intellectual property rights. With regard to DeVry/Becker, we search for offers, sales, or other uses of the course materials that exceed or violate the limited license granted. We also review these websites for offers and sales of improperly obtained DeVry/Becker materials. In reviewing this matter, and based upon the information obtained, it appears your auction was closed because it included DeVry/Becker course materials. We close all such auctions and sales that infringe DeVry/Becker’s copyrights or other intellectual property rights. It is important to understand that the scope of copyright protection and intellectual property rights extends beyond just the protection of licensed software, which is the most well-known and popular object of copyright infringement. It is perfectly justified to produce other original works (i.e, textbooks, study guides, flashcards, a painting, a poem, etc.) and make them available for public possession with a restriction. As has been explained before, "DeVry/Becker's books, software, and other materials ("course materials") are not sold, either independently of or in combination with DeVry/Becker's review course. Instead, DeVry/Becker grants its students a limited, non-transferable license to use its course materials for their individual studies, in conjunction with DeVry/Becker's review course." It is unfortunate that many who obtain the Becker course materials don't seem to realize that the transaction is not a simple purchase, but rather a contractual agreement they have entered, if you will, the "limited license agreement" which stipulates that the materials now in your possession are not transferable under any conditions. Hence, the First Sale Doctrine does not apply. As such, any attempt to "sell" or "give away" the Becker course materials is a breach of that contract, which does not preclude DeVry Becker from asserting its intellectual property rights. DeVry Becker would appreciate your co-operation in this matter. Please also be advised that three infringement violations may result in permanent termination of your eBay privileges. We trust that the above answers your inquiry. We welcome any additional questions or comments you may have. Sincerely,
Barbara M.
Gesiakowski, Paralegal Note: they place such importance on the VERO program that they stick a rookie paralegal on the case! This is so low on their priorities that they won't even assign a real lawyer. Obviously Becker-DeVry gets what they pay for. And my reply...I’ve been here a dozen times. The First Sale Doctrine does cover this type of transaction. You can word an agreement any way you wish, but it can't violate the law. If I sold someone a gun and had them sign a contract stating that they had the legal right to “shoot whomever they wished” it would obviously not make it legal. “It is unfortunate that many who obtain the Becker course materials don't seem to realize that the transaction is not a simple purchase, but rather a contractual agreement they have entered, if you will, the "limited license agreement" which stipulates that the materials now in your possession are not transferable under any conditions. Hence, the First Sale Doctrine does not apply. As such, any attempt to "sell" or "give away" the Becker course materials is a breach of that contract, which does not preclude DeVry Becker from asserting its intellectual property rights.” “but rather a contractual agreement they have entered” – One they have entered, not I. These takedowns violate the DCMA and federal law. And as you are aware, you cannot enforce your contract with a third party. I did not purchase the books. I am not bound by the agreement Becker has with the student. I believe its called the privity of contract. If you feel the contract was violated, you’ll have to go after the person who purchased the books. Good luck finding him. I have no idea who he or she is. I’m dealing with a friend of a person the books were given to as a gift. I have already filed counter-notices and will continue to sell these programs. Just because you feel justified in abusing eBay’s VERO program does not make it ethical, enforceable or legal. Also, eBay policy requires the initial eMails concerning VERO takedowns to be answered within two business days. It’s been almost three weeks. I suppose you have an excuse for that as well. “Please also be advised that three infringement violations may result in permanent termination of your eBay privileges. “ I love that line. Do people actually fall for it or panic? I only wish there was a policy in place to ban companies (such as Becker-DeVry) that violate and abuse the VERO program by filing these false complaints. But perhaps that is why Becker-DeVry changes their VERO cops so often. Overbilling and non-performance. So, no, I will not cooperate. Your VERO complaints were fraudulent and such bullying will not work. I have done nothing wrong and violated no laws or regulations. I believe you are the ones who are committing fraud, not I. Rick Drew |