Thread: Yet Another Blantent Ebay Rip Off - Is Your Skin Here ?

Had a reply....

Hello.
The Vauxhall skin has been custom made by ourselves. Yes it is based on an available theme, but if you look, the skin has been pretty much totally re-made. We used our own images for icons and the text. As im sure you know this means totally remaking the skin.

If you can show me that the vauxhall skin we use is identical to yours then i am happy to give you the credit for it on the auctions?
If you want me to remove it, then i have no problems with this.

We are not offering the Media Engine software as a product for sale, we are offering the design of skins to suit the cars that people want to use it in.

If you think it is misleading then i will of course change the wording, but we offer a service that is customising Media Engine for people because not many people have the neccessary skills to do it themselves.

Terran

Lol

Everyone wants easy money , but this seller is a clown.

I would ask him to remove it. Sounds like a blatent cop out. We use our own graphics and background pics.

OK, don't hate me for this, but:

I see posts similar to this on all sorts of forums and I think many people are a bit naïve about what others can and cannot do with property that has been made freely available on the internet. I commend you on your work and on your generosity for making it freely available to the community, and if he has really taken your exact work and is claiming that he did it himself, and is profiting from directly reselling your work, then it surely is dishonest and probably illegal.

However, he does have the right to "add value" to the PC that he is reselling by installing and configuring any freely available software, even if the person who wrote the program doesn’t permit sale of the software. The reason is because he is charging for the service of doing the install and configuration, rather than charging money for the product itself. It may seem a bit greasy, but legitimate businesses do this all the time.

To stop him from doing what he is doing, I think you would need to include something in your legal statement that specifically denies ANY redistribution of the product, whether for free or for profit, without your permission. This would still not prevent him from charging for his time in regards to installing and configuring the software, but it would require that the end user be the one to download the software onto the PC, rather than the seller providing it to him preinstalled.

Also, if he did modify the skins as he claims to have, then he may even be able to get away with direct selling of the skins too, but that’s where it starts to become a grey area and the legality would probably come down to how dramatically the skins were changed.

Thing is ,he is charging for just the software.(as 2 auctions)

We don't hate you

The problem is that this has happened before and will definately happen again. I am sure that Terran has a disclaimer of some sort that his skin is not to be used for profit.
It may be a grey area and "legit" to do what this eBay guy is doing, but people like that kill the good will in the people that make these skins. Most of them do this in their personal time and for free I might add. There is a ****load of work associated with making a skin. The problem is that the original designers get ****ed for their stuff being ripped off and they stop making skins. CdRskull is a prime example of what can happen. He has better things to do than to make awesome skins so that someone can rip them off.
If these so called businessmen want to make a buck from someone else's work, fine, at least ask permission FIRST! I am sure that if most skin makers were approached BEFORE these things ended up on eBay or at trade shows, a deal could be worked out that is benificial to all parties concerned.

/rant

This guy has completely violated the license agreement. I have contacted him about it, but I don't know what else I can do. Read below. He violates just about everything here in bold. Everything you all have said above is legally protected with the mediaengine license agreement. He agreed to the below items by clicking the "OK" install button. He is breaking copyright law.


MEDIAENGINE CLIENT LICENSE AGREEMENT
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE MediaEngine CLIENT SOFTWARE (THE "PRODUCT"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE PRODUCT.

1. LICENSE GRANT. mediaengine.org ("mediaengine.org") grants Licensee a non-exclusive and non-transferable license to reproduce and use for personal or internal business purposes the executable code version of the Product, provided any copy must contain all of the original proprietary notices. This license does not entitle Licensee to receive from mediaengine.org hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Product. Licensee may not redistribute the Product. In the event Licensee wishes to redistribute or sublicense the Product, either for profit or otherwise, Licensee must first obtain written permission from mediaengine.org to do so.

2. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, Licensee may not: (i) modify or create any derivative works of the Product or documentation, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (v) publish any results of benchmark tests run on the Product to a third party without mediaengine.org's prior written consent. Plug-ins and product components provided with or as part of the Product may be used only with the Product and not on a standalone basis or with any other product. Product APIs may be used only to develop code to work with the Product.

3. TERMINATION. Without prejudice to any other rights, mediaengine.org may terminate this Agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Product.

4. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product shall remain in mediaengine.org and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with mediaengine.org's or its suppliers' ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Licensee agrees, at its expense, to defend and hold mediaengine.org and its affiliates harmless from any and all costs, damages and reasonable attorneys' fees resulting from any claim that Licensee's use of the Product has injured or otherwise violated any right of any third party or violates any law.
5. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE AND ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT mediaengine.org OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL mediaengine.org OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, mediaengine.org'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY mediaengine.org UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF mediaengine.org TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. mediaengine.org IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
7. EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S.
8. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, mediaengine.org and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that mediaengine.org and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.
9. U.S. GOVERNMENT END USERS. The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein.
10. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Santa Clara County, California, under the auspices of the American Arbitration Association (AAA), with the losing party paying all costs of arbitration. (e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (h) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (i) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity. (j) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (l) The relationship between mediaengine.org and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind mediaengine.org in any way. (l) mediaengine.org may change the terms of this Agreement from time to time. By continuing to use the Product beyond a period of 30 days after notice of such change has been provided on a public website of mediaengine.org or its affiliate for the first time, Licensee signifies its consent to the revised terms.

And, general US copyright law (which is applied to all signatories of the Berne Convention-http://www.law.cornell.edu/treaties/berne/overview.html) states that one can not copy, or distribute the coprighted work of another with out permission. The US law does not differentiate between for profit, and not for profit.

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.


What that guy is doing violates US copyright law. Doesn't matter WHAT he is actually charging for. Doesn't matter what the TOS or Legalese says, UNLESS HE EXPLICITLY STATES IN THOSE THAT YOU CAN FREELY DISTRIBUTE AND INSTALL THE PROGRAM WITH OUT PERMISSION. Otherwise, it's a no no.

Michael

Perhaps Media Engine should go after him for punitive damages so he never does it again!