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."

Comments

How is this piracy?

[BrynM]

How can this be considered piracy? He isn't reproducing the patterns, he is selling hard merchandise. I understand that "He did not pay for these patterns" as Mr. Herman from McCall stated, but doesn't that make it theft? Where I live, dumpster diving is considered tresspass which could lead to theft charges, but Mr. Gendron claims "they are abandoned property" and he may be right if that is what Detroit law says. This was an underhanded misuse of an already bad law to get the site taken down. Gotta love that whole consequences before proven guilt thing the DMCA has going for it.

Re:How is this piracy?

[eyeball]

Furthermore, isn't the DMCA supposed to punish and prevent people from circumventing copyright protection? Are they arguing that the dumpster constitutes a copyright protection mechanism?

Re:How is this piracy?

[Kaeru the Frog]

I think the point is that he's selling copyrighted material (the patterns) without the copyright holder's permission...

You don't need the copyright holder's permission to sell. You only need permission to copy, perform, or create derivitive works.

Re:How is this piracy?

[cgenman]

That is piracy, at that point.

Breach of contract, I believe.

To refine your analogy into, well, basically what is happening now. You own a store, and enter into an agreement with the publisher that you will attempt to sell their product, but if it doesn't sell they must refund your money and you will destroy the recordings. This is a very common arrangement in the publishing industry, where the publisher assumes some of the risk for a new product. The store fails to sell-through 90% of said product. You then tears off the covers to send to you as proof of sell-through rates, and instead of adequately destroying said material as per the contract you simply throws them in the garbage. Kids dive through your trash, and claim the abandoned material. Kids sell material to eachother and other kids.

If it is your job to destroy property X, and you fail to do so instead abandoning it, person Y has every right to pick it up and claim it. Piracy is the willful copying of an expressive medium for which you do not hold the right to do so. You were contractually obliged to destroy the medium upon which the copyrighted material was located, but failed to do so. In your MP3 situation, you violated copyright law by selling MP3's without adequately destroying the source material (abandonment does not equal destruction). In the above mentioned situation, and indeed in the one in real life, the company that threw away the patterns is guilty of breach of contract... failure to adequately destroy said property.

The dumpster divers should be in the clear on this one, in my NSHO, but the company that threw it out needs to get an incenirator or contract to a garbage company who will come onto their property to collect the dirty goods.

Re:How is this piracy?

[Wavicle]

Yes, you are correct.

Let's all write a letter to congress thanking them for passing a law which threatens ISPs with financial ruin if they do not comply with what a business says, but essentially holds those businesses unaccountable for abuse of that law.

Any takedown notice issued by a company whose revenue exceeds $1 million should be accompanied by a bond for $100,000. If the target of the takedown contests the takedown, the issuing company should have thirty days to commence litigation or forfeit the bond in its entirety to the defendant. This bond amount should not limit in any way the ability of the defendant to sue for damages. The bond simply exists as a token to ensure that corporations will perform substantial legwork before issuing a DMCA based takedown notice.

Re:How is this piracy?

[klaun]

That is piracy, at that point.

No, it's not piracy. Piracy involves people with one eye and a peg leg who go "har." Or perhaps more specifically, a robbery at sea, often accompanied by violence. Fight the co-opting of the term "piracy" for copyright violations. It is just meant to incorrectly associate a purely non-violent, non-threatening, non-property depriving (not revenue depriving, although I think that can be debated) crime with something that is far more serious and violent.

Say "copyright violation" instead of "piracy" and no one pays any attention. And that's as it should be.

Re:How is this piracy?

[DdJ]

Some people believe that taking things out of other people's garbage is stealing.

If placing things in the garbage is, from a legal standpoint, a valid way to destroy them, then removing things from someone's garbage has to be illegal in at least some cases -- you are "un-destroying" something that has been legally destroyed. Cause a segmentation violation in the law's view of reality, go to jail.

And, if placing things in the garbage is, from a legal standpoint, a valid way to destroy them, then many operations become cheaper to execute (eg. the "take the cover off the book and throw the rest away" maneuver that bookstores go through).

So, there are real economic reasons for this to be the way things are set up from the standpoint of the law, even though it artificially creates a situation where rooting through random garbage can actually be labeled as stealing or piracy.

The cost to society of having the law work this way may actually be lower than the cost to society of having the law be "sane". (Not saying that that's actually the case. Just pointing out that it might be the case -- it's at the very least not clear-cut.)

Other Reasons for Decline

[gerf]

The old article stated that the Internet is responsible for declining sales of patterns for doilies and other sewing patters. Here's two reasons i think this is BS.

1.) Given the median age of the people who still knit and sew, i'd say that few of them use a computer, much less the internet.

1.) The people who do sew, are so old they're probably just dying off anyway, thus leading to the declining sales.

Re:Other Reasons for Decline

[Zathrus]

Shrug... my wife's step-mother sews. She also teaches computer classes. She has her own computer (separate from my father-in-law's) and it used to be located next to her sewing machines (they're currently moving, so who knows after they've settled in).

And no, she's not that old... in her 50s I believe.

I agree that the number of people who sew are on the decline, but I've known several people (all female, unsurprisingly) my age who sew, knit, or do other such things as hobbies. And they're all from large cities (2M+), not country bumpkins.

Re:Other Reasons for Decline

[gwernol]

The old article stated that the Internet is responsible for declining sales of patterns for doilies and other sewing patters. Here's two reasons i think this is BS.

1.) Given the median age of the people who still knit and sew, i'd say that few of them use a computer, much less the internet.

Okay, bring on the data. What is the median age of people who knit and sew? What percentage of them use computers? What percentage use the Internet? Actual figures from a reliable source would be useful. I just don't buy this argument without seeing some evidence. After all if none of McCall's target audience used the Internet, they'd hardly be worried about a company that sold old sewing patterns on the Internet...

1.) The people who do sew, are so old they're probably just dying off anyway, thus leading to the declining sales.

That assumes that no-one new is taking up the pasttime. Again, do you have any evidence to substantiate this?

sue 'em good

[frovingslosh]

If , as reported, they are selling actual patterns and not copies of same, then McCalls or anyone else has no business in using the DMCA in this, it just doesn't apply. Heck, it doesn't apply anyway, maybe copyright law would (for bogus copies, not for factory originals), but there is no digital security to defeat in any sewing pattern I've ever seen. Sounds like a more extreme abuse of DMCA that has ever been reported before, and there have been some good ones. Only thing they might have a leg to stand on is simply theft of property, but apparently they don't think they can support that. I hope McCalls gets sued real good on this one.

So let me get this straight...

[Newer Guy]

1. I find a bunch of old magazines in someone's trash.

2. I take the magazines and list them on my web site hoping to sell them.

3. I'm guilty of a DMCA violation?? This doesn't make sense! People are using the DMCA as a 'catch all' law to make EVERYTHING online illegal. This law must go away!

Bad for Karma, but I'm on McCall's side...

[MyNameIsFred]

It is not uncommon for companies to have merchants dispose of surplus merchandise. For example, paperbacks have their covers ripped-off. The bookseller returns the cover for a refund. The rest of the book is not suppose to be sold or given away. This process is designed to keep costs low (they don't have to pay shipping for the heavy books).

Apparently, McCall has a similar process for excess patterns. The understanding with the merchants is that the excess patterns are NOT to be sold. Monsterpatterns is disrupting this process. While other means could be used (e.g., shredding the patterns) this would increase costs for the merchants. And is not a good thing.

So while DMCA may be hated on Slashdot, I believe McCalls has a right to protect their copyrighted materials, which they want to have removed from the marketplace.

Re:Bad for Karma, but I'm on McCall's side...

[dwdyer]

So while DMCA may be hated on Slashdot, I believe McCalls has a right to protect their copyrighted materials, which they want to have removed from the marketplace.

That's fine, but it's the invoking of the DMCA that makes this goofy. How does that affect grabbing something out of someone's trash and selling it? Granted, it might not be legal, but it doesn't appear to involve the DMCA except to get some press time.

IANAL, of course...

[poot_rootbeer]

The understanding with the merchants is that the excess patterns are NOT to be sold. Monsterpatterns is disrupting this process.

But Monsterpatterns is not a party to the contractual agreement between the pattern manufacturer and the pattern retailer. If the retailer fails to execute their part of the agreement, no third party is bound to abide by the agreement in their stead.

"They're doing something that's not illegal but it's messing up our business model" is not a justification to sue. It's a sign that the business model needs to be altered.

('altered', ha... tailoring humor... thank you, I'll be here all week)

DMCA does not apply

[mark-t]

The DMCA is only meant to prevent the decryption of digitally encrypted copyrighted content. Although there may be copyrighted content involved here, there is no digital encryption. The DMCA cannot apply.