Last month, I posted on the Neowin Forums that Microsoft was suing David Zamos, an Ohio chemistry student, for selling his two unopened academic version copies of Windows and Office on eBay. He earned $143.50.
Microsoft, which reported $38 billion in sales in the past year, alleges that Zamos’ eBay sales amount to unfair competition.
In the company’s suit, its lawyers accuse Zamos of copyright infringement for the eBay sales and contend the sales have “resulted in losses to Microsoft and an illicit gain of profit” to Zamos.
Further, the corporate lawyers said, “Microsoft has suffered… substantial and irreparable damage to its business reputation and good will, as well as losses in an amount not yet ascertained.”
But instead of bending over like a good corporately-owned citizen, Zamos taught himself law and countersued, creating an escalating game of legal chicken.
I’m glad to find out from Network Compendium that Microsoft’s lawyers blinked. IP lawyer Robert Chudakoff, who just a month before threatened to illegally seize Zamos’s sole possession, a Ford Escort, and throw him into bankruptcy, called Zamos and sweetly asked to settle.
Zamos probably won due to the negative publicity. However, there may be another reason; once again, the legality of a software EULA has escaped the scrutiny of the justice system. Most EULAs are lengthy, jargon-filled documents viewable in a tiny dialog box on your screen which you cannot read until you’ve torn open the package and popped in a CD – and MS lawyers had insisted Zamos had broken it when he resold his software, despite the fact he never opened the box.
Another interesting thing of note is that Zamos had initially attempted to return the software to Microsoft, who refused, despite that fact MS’s EULA explicitly allows this. I guess getting a Windows refund still requires going to court (as Linux users discovered in 1999).
I wonder what Microsoft evangelist Robert Scoble would say about this.