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How do I deal with Rosetta Stone?

Bremerton, WA |

Like many, I purchased what I believe to have been a legitimate copy of RS software on eBay within the past year. It was not purchased from a licensed seller. I never opened it or tried to load it onto my computer. I later decided I didn't want it and put it back on ebay. It sold and shipped by the time I received notification from eBay that the auction was cancelled due to piracy concerns. Next, I received the C&D order via email. I responded, explaining the situation, called the number provided in the email. Today my wife phone. I expect to be hit up some time in the near future for some kind of settlement. I still believe the s/w in question to be legitimate. Since I never opened the s/w or dealt with an authorized dealer, can I be considered a "licensee" and to be bound by the EULA?

Attorney Answers 4


Q: Since I never opened the s/w or dealt with an authorized dealer, can I be considered a "licensee" and to be bound by the EULA?

R: There is no End User License Agreement for that copy of the software because that copy was not made or authorized by Rosetta Stone. A counterfeiter cannot create a binding contract [in this case an EULA] between the buyer of the counterfeit product and the genuine manufacturer. So, no, you are not a Rosetta Stone licensee and it does not have breach of contract action against you. You are [apparently] the seller of a counterfeit copy of a Rosetta Stone product and so it has one or more infringement claims against you [copyright or trademark or both].

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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Rpsetta Stone's lawyers would probably doubt that you thought that the copy you bought was legitimate, because legitimate buyers and sellers don't use eBay and you knew the seller wasn't authorized. eBay is one of the primary places copyright and trademark lawyers police their client's DVDs and TMs, and that's where they look for infringers because that's where the infringers ply their trade.

But anyway, it doesn't matter what you thought, because these infringement claims don't rely on your intentions. Rather they're "strict liability" offenses, and just the act makes you liable.

For one copy, you probably won't be sued, but you might get a C&D letter demanding a settlement payment, as well as the information about who you bought this infringing copy from. The software owner's lawyers are trying to educate one seller at a time.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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The prior answers are correct. What you believed is not relevant, rather whether you sold a counterfeit s/w item (we call this "trafficking in counterfeit goods"), which it sounds like you did, and how many you sold and whether you have stopped. If all you did was a single purchase and resale the thing to do is try to help RS by listing who you bought from, that you are not selling multiple copies, that you are sorry if you accidentally bought from a counterfeiter, and that you will never knowingly do it again, and that you share their concern and will do whatever you can to help them. That will almost certainly satisfy them provided it is true.

The part you add "Today my wife phone." is not clear. Are you saying she received a call? Or are you saying she called RS (hopefully to apologize and offer her help rather than to do something to irritate them)? Or are you saying she called you asking where it stands?

Mr Ballard is correct that you cannot be a licensee or bound by the EULA for the reasons he stated. That is not your concern; your concern is the one described by Ms. Koslyn, that you can be an infringer when you sell a counterfeit item even if you think it is legitimate. Your comfort is that RS wants to stop the source, and going after customers is their way to put pressure on the source and to gather evidence and to track down the source. They are after the big snake that is hiding and spoiling the market, and those trafficking in counterfeit items, not single customers.

Finally, although it does not matter much here, I am skeptical of your claim that you are an innocent victim who thought it was a legitimate copy. Your quick resale suggests otherwise.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk.

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How do you deal with Rosetta Stone? You retain a lawyer to represent you and you try to settle. Your intentions, whether good or bad, are irrelevant. You were involved in trafficking in counterfeit goods, which is a strict liability offense. You dealt these goods (purchased and sold) on E-bay rather than directly from Rosetta Stone and its licensed dealers. The timing of your purchase and resale is, to say the very least, suspicious. While Rosetta Stone is no doubt interested in using you to catch big fish, in my experience Rosetta Stone's attorney will not be willing to simply accept an apology from you. Rather, it will expect you to pay some amount in settlement to cover its attorneys fees and costs. You should consider retaining a lawyer to negotiate this settlement---and most importantly, to handle the paperswork. Settlement of a legal dispute such as this requires documentation that must be handled right to protect yourself---you need to make sure that the documents release all claims that Rosetta Stone may have against you relating to this incident and you need a lawyer to make sure the papers are drafted correctly.

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