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.

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.