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Laurel&Hardy

eBay - Copyright Infringment on book, need advice

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Hi guys, great forum, been reading through it for ages, thought it was time to join up and get some advice.

 

Like many people, I have been buying and selling on eBay for years, fortunately with little hassle, until recently.

 

A few months ago I paid over £360 for a subscription to a company for 12 months supply of their guide (one book a month) which I use to look up the trade value for my products before buying. At the end of each month the information in the book is out of date and replaced by a new edition, thus the old one is destined for the bin.

 

However, at over £30 a book I decided to put last months on eBay for someone else to have should they want to get some "slightly out of date information". Anyway, eBay pulled the listing claiming it was a breach of intellectual properties and the publisher had complained. Personally, I don't care, so I will just bin it then.

 

Then, a few hours later I get a phone call from the publisher accusing me of selling copies of their publication, to which I put them right by claiming that I had never sold a copy due to the advert being removed, plus the book was an original purchased from them. I was told that I would get a letter reminding me of the T&C's which say that I cannot resell the book. I said fine if that’s what makes them happy.

 

I got the letter this morning which predictably used all sorts of legal heavy wording, but this is where I am really annoyed, they also said:

 

"For the time being we realise the breach appears to have been an innocent oversight on your part. We do not, on the basis of the information currently available to us, propose to take any legal action at this stage"

 

I take great offence at people sending me bullying letters!

 

Also, they state:

"I should therefore be grateful if you would counter-sign the enclosed copy of this letter to (i) acknowledge receipt of it and (ii) confirm that from the date of this letter you will comply with the terms of the Licence Agreement governing your use of ******* products."

 

I telephoned them to politely inform them that I will not be signing their letter, certainly not before I see a solicitor.

 

Any advice on where I stand would be greatly appreciated. :cool:

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you will comply with the terms of the Licence Agreement governing your use of ******* products

 

Presumably you have this agreement and have agreed to their terms when you took out the subscription. If not, why not ask them for a copy. Second hand books and magazines are sold all the time but I guess it may make a difference if the publication is delivered digitally. If you receive a hard copy publication I do wonder if they have taken on board that you were selling on an original and not making money out of copies.

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Thanks for your reply hightail, much appreciated.

 

I am sure it is in the agreement, to which I am not disputing. I am happy not to sell the originals on and just chuck them in the bin, but I object to their phonecall and letter as it feels like they are trying to harrass and bully me. I stated over the phone to them that I wouldn't put it up for sale again, now they want me to sign a letter to agree. If I don't sign, what can they do?

 

My main concern is that if I do sign the letter, and they decide to take any further action, wouldn't my singnature be an admission of guilt and perhaps go against me in the future?

 

Is there any merit in signing it and putting "Without Predjudice"? after my name

 

Thanks for the advice.

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Then again with it being ebay what's to stop you putting the item as free of charge but, say, £10 postage.

You haven't actually sold the book just covered your expenses......

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I don't know myself, but I think it may be worthwhile finding out whether the term in question is an unfair term, and hence unenforceable. (Not that such would prevent them threatening). I seem to recall it being considered an unfair term to sell (e.g.) music CDs with T&C's which prevent the buyers selling on the goods. Since the book in question seems to be a physical item ("bin them"), it might be that the same applies.

 

Not that I'm sure of any of this.

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It's probably not worth trying it again with ebay. Doing what geoff1248 suggests is seen as fee evasion and could get your account suspended. What's more I think there may be a ceiling on what you can charge for postage in that category now.

 

I wonder why they want you to sign this letter. Surely if they already have your agreement in the original contract they can't need it again, especially as they agree it was a single, innocent oversight.

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This is not a copyright issue, as far as I can tell, as there is no copying being undertaken. It appears as though ebay were unscrupulously duped into pulling the auction, as the was no breach of intellectual property rights.

 

The right of the purchaser to sell on the books would be governed by contract law, and, as suggested earlier by AT, the question would be whether or not a restriction on reselling would be considered an unfair term.

 

I would also question whether the books were sold, or whether they were licensed.

 

As for legal threats - Should there be any question of unlawfulness or breach of contract, the publisher would be required to demonstrate losses. What are their direct losses attributable to the reselling of an out of date book.

 

that being said, however, it's not unheard of for ebay to pull an auction on even the thinnest of pretexts.

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Thanks for all your varied, but equally helpful replies, much appreciated! :cool:

 

Well, I took the letter to my company solicitor who had a good laugh at their appalling letter and suggested the best course of action is to bin it as they have nothing on me; which they've already admitted in writing. In addition to that, I have not gained financially nor have they lost anything and so any legal action would be a waste of time and resources and may leave themselves open being counter sued.

 

Firstly, they have acknowledged in their letter that I have done nothing wrong deliberately, and that there are no grounds for them to take any action against me.

 

Secondly, if I NOW sign anything they put in front of me, it's a tacit admission that I have not followed the terms and conditions - which then means they've got me to ADMIT to wrongdoing (and open the doors to them taking action.)

 

So, I am going to just leave it. They have already acheived their goal, my advert has been removed, therefore any further correspondence from them may be perceived as harrassment.

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This is not a copyright issue, as far as I can tell, as there is no copying being undertaken. It appears as though ebay were unscrupulously duped into pulling the auction, as the was no breach of intellectual property rights.

 

The right of the purchaser to sell on the books would be governed by contract law, and, as suggested earlier by AT, the question would be whether or not a restriction on reselling would be considered an unfair term.

 

I would also question whether the books were sold, or whether they were licensed.

 

As for legal threats - Should there be any question of unlawfulness or breach of contract, the publisher would be required to demonstrate losses. What are their direct losses attributable to the reselling of an out of date book.

 

that being said, however, it's not unheard of for ebay to pull an auction on even the thinnest of pretexts.

 

Spot on. :cool:

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Bit unfair. :mad:

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I have been watching eBay for the past few days and there have been lots of the same publication up for sale unchallenge, in fact one ebayer has sold many copies of the book in the past few months.

 

Seems to me that I have been singled out!

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the only way you could be seen to be infringing intellectual rights is if you were to suggest that it was your work and not the creation of the author's. The same thing goes for copyright.

 

Is there anything in the agreement/licence that prohibits you from giving the book away? I've just looked at a selection of books I have to hand and they all contain the same condition - "this book is sold subject to the condition that it shall not, by way of trade or otherwise be lent, re-sold, hired out or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent publisher presumably because this gives the original author due prominence and acknowledgement as the writer of the work.

 

It certainly doesn't say I can't sell it after I'm done with it.

 

I think you're right to not sign the letter, I wouldn't.

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I have been watching eBay for the past few days and there have been lots of the same publication up for sale unchallenge, in fact one ebayer has sold many copies of the book in the past few months.

 

Seems to me that I have been singled out!

 

 

Yep and my moneys on the 'one ebayer' being responsible.


You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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