Re: Microsoft bullying letter :(

Niel J Humphreys wrote:
"Mike Harrison" <mike@xxxxxxxxxxxxxxx> wrote in message
news:lpasi5ldtfs1jd2l82fsqblkrshvcsnn6l@xxxxxxxxxx
On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker"
<spam-trap@xxxxxxxx> wrote:

Mike Harrison wrote:
On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"

Had a legal letter from MS flop on my doormat yesterday morning by
Special Delivery. They had an 'agent' make a test purchase of one
of my EBay items which was installed with a legit XP install with
correct COA on the machine (It passes both activation and Windows
Cenuine Advantage online test). However because their 'forensic
testing' showed I did not use the original restore CDs and
neither did I supply them with the machine they are threatening
to sue me unless I pay them £2500 compensation.

How exactly is not supplying original CDs with the machine a legal
matter?

I have just been re-reading the letter and they quote 3 points of
contention which I believe I can reply to with rebuttals:

1 - The computer was installed with Win XP Pro, the installation of
this software product requires the use of a "Product Key"
2 - Our records indicate that the COA affised to the computer along
with the corresponding product key had been supplied to a third party
for their use exclusively. You are not authorised to use the COA or
Product Key and your use of them indicates a deliberate attempt to
infringe Microsoft's iltellectual property rights
3 - No Win XP recovery media was provided.

You have been accused of infringing either copyright or trade marks of Microsoft. Unless you have _copied_ any software of Microsoft, which I understand you haven't, then there can be no question of copyright infringement. Unless you have offered something of Microsoft, branded as such or as Windows, which is not genuine Microsoft product, which I understand you haven't, then there can be no trade mark infringement either. I think you can therefore validly deny any copyright or trade mark infringement.

If you have done anything illegal, it is by breaching any conditions of sale that Microsoft have thought fit to try and impose on the original purchase of the software. I don't know if you've done that, nor if such conditions would be valid if challenged, but in any event it is not copyright infringement or trade mark infringement, but a matter of breach of contract. It seems to me that they are therefore barking up the wrong tree.

Now for 3 I can say I simply forgot to bundle them in the box and am
more than happy to send them if I'd been asked. (I do have original
Dell restore discs).

I think that's totally irrelevant. You cannot be required to supply anything.

For 2 as I used original Dell discs they do not ask for a product key
to be entered during the install process so I did not actually use
the COA or the product key. Further more the 'built in' product key
inprinted in the Dell restore discs would not match the one on the
COA but they seem to be claiming their forensics say that it does
from the way that is worded.


For 1 - again using original restore discs does not require the use
of a product key so this point is incorrect.

Ergo as long as I agree to ship the original restore discs then I
have done nothing wrong? Am I right?

I don't think you even have to do that.

Your choice is either to ignore their letter, in which case you take the chance that they will sue, or you reply saying their case is fatally flawed, again taking the chance they will sue anyway. I don't think they know the law, so it's unlikely they'll actually pay any rational attention to any response you make, so I'd be inclined to go for the former. If they do sue, at least a lawyer will be involved who will set out a case that can be understood.


.

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