Computer dealer says he was 'set up' by Microsoft

By ADAM GIFFORD

An Auckland computer tutor says the way he was caught up in Microsoft's latest anti-piracy sweep amounted to bullying and entrapment.

Microsoft on Tuesday named five computer dealers it said had admitted selling counterfeit software or illegally hard-loading machines, and who had paid penalties. One, Roy Sparksman from @Computers of Palmerston North, claimed he was set up when someone acting undercover for Microsoft asked to buy a PC without an operating system.

Now Dave Butcher from Kohimarama says his crime seems to be that he was selling secondhand copies of legitimate software to his students at community college night classes

"I encouraged all my students to buy legal software. I would buy software from other dealers at the Saturday morning computer fair in good faith, and sell it on to students.

"Microsoft seems determined to stamp out dealing in secondhand software," he said.

Mr Butcher said in the past he has even contacted Microsoft to check whether software was legitimate. He had also been warned by Microsoft for onselling secondhand computers with software still loaded. His problems came when he advertised some software for sale in Trade and Exchange in late 1999.

"Someone, who turned out to be acting for Microsoft, rang up and said they were trying to get a copy of Windows 98. I had an OEM copy I'd bought from a dealer with the intention of putting on a machine I was building, but I said they could have it."

OEM, or original equipment manufacturer, copies are sold to assemblers for loading onto new machines. While resale is frowned upon, Mr Butcher said he has seen piles of OEM Microsoft operating systems for sale in a large Auckland software retailer.

Some months after selling the software, Mr Butcher received a letter from Chapman Tripp, a law firm acting for Microsoft, demanding a meeting.

"When they told me what it was about, I said it was entrapment. The lawyer said 'entrapment is not illegal in New Zealand, is it?"'

Chapman Tripp lawyer Graeme Austin said Mr Butcher was misquoting the conversation, and referred the Herald to senior partner Jack Hodder. Mr Hodder said unlike in the United States, entrapment is not an excuse to turn the tables on the prosecuting party, particularly in civil matters. He said the "trap order", where a vendor is asked for something extra or not in the advertisement, is a standard technique for investigating copyright breaches.

"What Microsoft is doing is consistent with orthodox approaches to enforce intellectual property rights," Mr Hodder said.

Mr Butcher said Microsoft demanded a penalty of $8000, but accepted $2000after negotiation. With legal fees, the exercise cost him $4000 "and many sleepless nights."

"My lawyers told me to settle, because no one ever wins against Microsoft," he said.

Microsoft lawyer Vanessa Hutley said she couldn't comment on Mr Butcher's case.

"There are people out there who are not legitimate traders. We don't want to tell these people how we operate. What we can say is we do is do not take these matters lightly," Ms Hutley said.

Microsoft yesterday launched a programme to help businesses audit their software assets and understand software licensing terms and the risks associated with software piracy. Microsoft is sending every customer with more than 50 PCs a transcript of their Microsoft software licence purchase history. It will follow up directly to help with internal software audits. It is also sending company directors information on software management and copyright infringement .

Channel and business group manager Alex Morcom said use of illegal software is often unintentional and businesses frequently find it hard to track software licensing.