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DMCA Vs. The Sewing Underground
Roundeye writes "So the folks at monsterpatterns.com dumpster-dive to get envelopes containing discontinued sewing patterns and sell the envelopes via their website. The sewing pattern company McCall invoked the DMCA to get the site shut down. Monsterpatterns is now suing to protect their 'fair use rights' to advertise and sell the discarded patterns. You might recall that this isn't the first time the sewing industry has cracked down on bootlegging grandmas and their suppliers."
I suspect that what's occurred here is the hobby store (Jo-Ann's in this case it seems) wants to send the merchandise back to the manufacturer for a refund. The manufacturer issues the refund but tells the store to discard the excess material -- they don't want to store it either afterall.
It's kinda similar to books with the covers ripped off, which are not supposed to be sold since they were written off by the publisher. But it still happens. And McCall is out on a weak limb here -- if they wanted to sue someone, they should go after the store for not properly discarding the material. Or maybe they should've had it shipped back to them (at their expense) so they could discard it properly (at their expense). Once it's in the trash, it's usually considered fair game.
It really is another horrible example of the DMCA though. Yeah, I couldn't care less about the patterns, but as you said it's a law that assumes guilt (and while, admittedly, this would be a civil case where the burdon of proof is not as strong as in a criminal case, it's still a very wrong methodology).
If that were the case, then you couldn't sell your old movie collection at a yard sale.
YOU SUCK BALLS!
I don't know if there are laws for destruction of other works that are similar to the book thing but I think in general companies would like it to be illegal to sell product that has been "destroyed". That doesn't mean I like the DCMA being used to do this, it seems like a misuse of the law.
On a completely different note but highly related I think that if a company will no produce another copy of a copyrighted work then they should lose the copyright at that point. I hate the fact that I can't buy old books/software/music that I'd like because the company that owns the copyright will no longer distribute it.
"You can now flame me, I am full of love,"
You may need to widen your circle of friends (or awareness of different subcultures). That isn't meant as a troll or swipe at you personally.
I personally know 8 people who sew as a hobby. Only one is over 60. Two others are over 40. The other 5 are in thier 20s to mid 30s. Of the 8, 7 use a computer on a regular basis, 5 of them at home as well as work. 3 of them (that I know of) are part of online sewing/knitting groups. One of them is a software contractor. there is a (fairly large) niche market for pattern-making/designing software. There is also a fair-sized market in machines that you can program with said patterns. The 60+ YO's machine can do just about everything except go to the store and buy the fabric.
I don't pretend to follow it all that closely, but the whole sewing/knitting hobby/subculture is alive and kicking. It probably rivals the Ham people in numbers.(Yes, yes, I know "Ham is dying, film at 11")
That said, if the internet "is responsible" for declining sales, it's because they have failed to adapt to a changing business environment.
"If, therefore, any be unhappy, let him remember that he is unhappy by reason of himself alone."
~Epictetus
The police have no additional rights to search and seizure than you or I unless they have a warrant.
Quite right. However, your analysis applies to something that is legitimately licensed copies, which these sewing patterns are not. The question in this, which is what makes it so much of a brainbender: by using a non-licensed copy of something, are you a pirate?
Ostensibly, the store is transferring the rights of the "original" back to the manufacturer - in effect, the product was "de-licensed," at which point it is supposed to be worthless, and is disposed of as such. Clearly, however, it wasn't rendered unusable. So, is using something that doesn't have a valid license the same or different from making a copy and THEN using something that doesn't have a valid license?
I think it's much the same. Consider this - let's say I have a site-license for some software on my servers, and I let that license expire. Now let's say I use it. Note that I have not illegally copied the software - it was copied quite legally, when it was licensed, by the company who licensed it to me. But now, can I use it without breaking the law? Of course not.
So, ultimately, it is ILLEGAL to use something that is not legitimately licensed, whether you or someone else made the copies. See the "stripped book" argument made by others in this thread.
That's not to say the DMCA applies here - it's hard to suggest anyone's reverse-engineering sewing patterns or something - but it's very likely against the law to use or especially sell them.
-Looking for a job as a materials chemist or multivariat
Ah ha. Doing a little more homework...
McCall's isn't saying the patterns can't be sold. Wait. Let me say that a little louder.
MCCALL'S ISN'T SAYING THE PATTERNS CAN'T BE SOLD.
Their gripe is with Monsterpatterns putting pictures of the patterns on the website. You know: reproducing (as in making a COPY of) the copyrighted art/photographs on the cover of the patterns.
It's still a bit underhanded, but it makes a certain sort of sense, far more than "you can't resell the physical pattern."
Here's the forum message where the rep (owner?) says "Today The Mccall pattern company through their attorneys have told our web host company that we are 'infringing on their copyrights' by displaying pictures of patterns that we own."
Slashdot's token middle-aged housewife
Maybe this is making an incorrect assumption, but I'll fly with it: If the retailer throws the unsold patterns into a dumpster on their property, then, until the garbage company comes to collect the garbage (thus trasferring some semblance of ownership from the retailer to the garbage company), the patterns are not abandoned...they are still the property of the retailer and have been placed in the dumpster for a specific purpose: to be disposed of in a landfill by the garbage company.
If I leave my front door open and go to work and come home to an empty house, would the insurance company re-imburse me for the theft or would I be neglegent? Shouldn't the patterns be thrown in a locked trash bin?
In fact, here in Boise, Idaho, when you place the trash in a dumpster, you have transferred ownership of the trash to the garbage company.
In this case wouldn't the retailer have no claim to file a suit? Wouldn't it be the responsibility of the trash company to sue?
The copyright holder's obligations are spelled out at the Chilling Effect Clearinghouse.
The lawyer representing the copyright holder has to claim under penalty of perjury, that they are authorized to act on behalf of the person they claim to represent. That is the only statement they have to make under penalty of perjury.
The takedown notice needs to describe the allegedly infringing activity, and the lawyers must state that they have a good-faith belief that the "use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." [17 USC 512(c)(3)(A)(v)]. They do not need a good-faith belief that the described activity is actually occurring.
This RIAA takedown notice is an example of the law being abused.
The ISP is then required to take the content down for a minimum of ten days and no longer than 14 days in such period the plaintiff must file for a court order.
The ISP can only put the material back up if the subscriber files a counter-notice. In that case, the ISP must notify the complainant. Even if the ISP receives a counter notice, they can not restore the material until the complainant has had ten business days to respond to the counter-notice. If, after 14 business days, the complainant does not file suit, the ISP is required to restore the material.
The requirements for a counter-notice are more stringent than the requirements for a take-down notice. To file a counter-notice, the subscriber must state under penalty of perjury that they have a good faith belief that the material was removed by mistake or misidentification. The subscriber must also consent to local federal court jurisdiction.
For those of you thinking you could file a notice to shut down the RIAA's website for ten days, think again. The penalty for an ISP that fails to comply with a takedown notice, is that they cannot claim immunity from the infringing activity. I suspect the RIAA's ISP will take that risk rather than upsetting one of their well-endowed customers.
IANAL
This part of the DMCA is very good and very clear. It is unfortunate that it must give such power to plaintiffs; however, due to the penalty of purjury assumed by the plaintiff illegitimate accusations can easily cause a counter-suit and thus the system is balanced.
I agree that the way you described it, the law would be fairly good (really the ISP shouldn't need to take the material down if they recieve a counter-notice). Unfortnately, the balance you refer to does not exist.