The eBay thing isn’t so clear. Microsoft will go after any venue that allows auctions of its products. Auction houses aren’t about to fight Microsoft to allow a tiny percentage of their auctions.
eBay is just the most egregious syncophant, not only complying but bending over backwards to help. At one time Microsoft had an eBay account, and they used that account to make complaints about legitimate auctions of Microsoft products and have the auctions pulled. Because of this people rated the Microsoft account very low. eBay changed all of those ratings to neutral, and then people left comments on the Microsoft account saying things like “Microsoft had my auction of a new, shrink-wrapped copy of [product] pulled. This is a negative rating.” Any further negative ratings still came out neutral.
The only problem in describing things the way you are, is that software developers could write software so that the end-user could do anything they wanted to do it, rewrite certain sections, resell it, pass it on as a subsequent work that they did on top of that software, and just treat the software just like a ham sandwich — but they don’t (that is, the ones who want to make a living... LOL...)
What’s the problem? Well..., they can’t make a living... the way you’re talking about. There may be some software writers that contribute, for fun or for principle, to different kinds of software, but the vast and overwhelming majority of software is written and sold just like Microsoft and Apple handle their own software. That’s because they make money and the other software developers will do the same thing because they also make money.
If no one makes any money — they’re simply not going to write the software, except in the case of some “cause” or “celebrated” effort that a bunch of writers get together to do. The vast majority of software would go totally unwritten. No one would put forth the effort at all.
That’s why you see the law the way it is, the court cases the way they are and the judge’s decisions the way they are. That’s how people (including all the various and different kinds of software writers) make their money — in this country.