Slashdot Mirror
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."
a lot of these sewing machines can be plugged into the computer and download patterns and then reproduce them on cloth, sort of like a cloth printer
I thought the DMCA was about copyright control circumvention?
What, are they claiming that a dumpster is copyright control?
BlackNova Traders
This sewing pattern industry must be reasonably low tech to have not yet considered IP theft, brand identity, shredders and burn bags.
That once your garbage hits the curb, its public domain. I think this should constitute..
Maybe since sewing grandmas don't have the same image as Eric Corley, this would be a good case to take the DMCA to the Supreme Court over?
That's usually what it takes -- an application of the law so abusrd that even Joe Average realizes it's a bad law. Remember the Life Begins at Conception laws where people started claiming their unborn children on tax returns for the year where they were in the womb, and female prisoners claiming that their unborn children were unlawfully imprisoned because the mother was?
Call it the Law of Unintended Consequences Applied to Law Law.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
bzzt. incorrect analogy. the guy isn't photocopying the "master" pattern. he's selling the envelopes. a better analogy would be if you threw away your cd collection and somebody picked it up and sold it.
2 1337 4 u!
The latest model sewing and quilt machines can download patterns and sew just about anything. Why a guy can use one of these things and feel pretty good about himself! Ahem... not like I've done that or... anything.
Yes, but if there are no dumpster-diving laws, someone could sell those original master recordings on eBay. They just couldn't make and distribute copies.
__
Do ya feel happy-go-lucky, punk?
People sell copyrighted material all the time without the express permission of the authors. Magazines, books, videos, the list goes on. There isn't a license agreement sticker on the patterns are there?
For the same time period, both major pattern makers referred scores of customers to Monsterpatterns as a great source for discontinued patterns. These referrals came by way of email and telephone from Simplicity and McCall employees.
While this doesn't qualify as official company policy (employees referring customers to the site on their own, rather than the company telling the employees to refer them), I think it badly undermines the pattern companies' case. Obviously they knew about the site for a long time, they knew what it did and what it offered, and they turned a blind eye towards it.
Suddenly, some lawyer realizes it might be grounds for a quick courtroom profit and announces they're suing under (of all things) the DCMA. As if throwing boxes in the trash could possibly constitute encryption....
We need lawsuits like this to show the world how silly DMCA is. I thought that they crossed the line with toners and ink cartridges but this one tops them all.
a g=fdfeed
At least there's one Senator that wants to limit DRM and DMCA.
http://zdnet.com.com/2100-1105_2-1013037.html?t
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d
I guess they're using the DMCA because it's a website they're trying to shutdown.
I don't see that resale of merchanside is hacking or infringing copyright.
I am definately not so old that I am going to die off, and have been sewing for more than 20 years (along with knitting and crocheting - something that alleves the carpel tunnel pain that is in my wrists from working on the computer!!)
It is much easier to search the internet for patterns than going to the fabric store. (http://www.simplicity.com or http://www.voguepatterns.com) I can search several different sites that can create custom patterns that are the printed on plotters via AutoCad - http://www.cochenille.com is one of the best. For the patterns that have been discontinued - that has been one of the sour points of the industry. I find something that I like - and McCalls has allready discontinued it, or it's used as an example of restyling a design, can't be done.
If it's been thrown away in the trash -- it's public. That's been proven in several U.S. courts (which is why the police do not need a search warrent to go through someone's trash).
McCalls' -- get over it. Your patterns have not been the greatest for the past ten years. To blame your main customers for the decline is like the RIAA blaming their customers for producing insipid music and loss of sales!!!
design is art - art is design
the D in the DMCA stands for Digital.. and opening the lid is digital, how ?
MLT - simple and robust open source multimedia framework for Linux
First - dumpster diving has nothing to do with the DMCA. Nothing. What monsterpackets is doing is no different from me grabbing a turntable that someone tossed and selling it on eBay.
Second - if this is such a *huge* problem, why not FIX it?
Sell the packets in bulk to monsterpackets or someone else. buy a shredder and destroy them.Shit, this DMCA crap is tired already - it took me two minutes to think of these things, and I haven't even started drinking yet.
It's a pity that she bought into that. Sure, it's interesting to have those gadgets, but modern machines are just the crappiest, weakest construction ever. Sneeze on them, and they fall apart.
My wife and I have a 1947 Singer. STEEL, baby, 100%. Doesn't reverse, doesn't buttonhole, uses a legbar for control instead of a foot pedal.
That sucker stitches through leather WITHOUT a leather needle. My wife made a 32 foot long x 17 foot high x 13 foot wide "French Bell" pavillion on it, and it just needed an oiling and lint cleanup.
Now that's quality!
Not my first choice of purchase, but has anyone looked at the cost of sewing nowadays?
I mean, supplies are expensive, the cost of sewing machines can be incredible (cheap ones in the hundreds, up to thousands for higher-end though), and patterns are definately a rip.
Maybe we need an "open pattern site" - anyone got a link?
I wondered the same thing, and was initially quick to jump up and shout "DMCA abuse," but as it turns out, from the article:
The companies invoked the Digital Millennium Copyright Act (DMCA), which shields Internet service providers from liability if they comply with takedown requests. It seems the long arm of the DMCA, which has been used to crack down on file-swappers, printer cartridge makers and font creators, is now reaching into the competitive world of sewing patterns.
So the DMCA does not in itself make what the dumpster-diver did illegal, but it does provide prssure to force the ISP to shut down his site. I agree with the other posters in that the outcome really is going to be determined by the salvage laws (eg the legal definition of whose property trash is) which have in recent decades been affected by police searches (some states have made your trash anyone's property to make it easier for police to search it, some states have said it is still yours so police cannot search it with no warrant).
Honestly, I think if you threw it away you have no right to stop people taking it. Discouraging people from recycling garbage is irresponsible given the state of our landfills. I also say this is not a case about copyright at all and McCalls is way out of line. In fact, this stuff is not McCalls' property, anyway. It was sold to the Jo-Ann Fabrics Store and only the exact store he took the patterns from has any case at all.
I also think it is absolutely wrong that any company can own and not distribute an idea. I think there should be some kind of timeframe during which they have to do something with the technology after which they have to license/sell it to someone else or give it away. If they are never going to use it (again) they do not have the right to destroy the idea for everyone else.
In this case I think the main thing that got McCalls feathers in a ruffle was that they intended no one to ever be able to use these patterns again. They probably told the stores to throw them away and not sell them anymore. Who knows why they did that, but the fact they did is to me a gross abuse of the system of intellectual property law.
And so you throw your CDs in a recycle bin, trusting that they'll be destroyed. But then some college students dig through your recycle bin and salvage the CDs, the CDs that someone else already paid for, the CDs that you have made a comittment to destroy.
That is piracy, at that point.
And that's how far you have to take tha analogy to make it accurate.
In this case the merchant failed to dispose the merchandise properly. In some states, dumpster diving is illegal and considered theft. But theft of property is not why McCall and Simplicity wanted the website shutdown. They are claiming copyright infringement. If anything, McCall and Simplicity have a case against the company that didn't dispose of the patterns in the first place for negligence.
I believe McCalls has a right to protect their copyrighted materials . . .
True, but again Monsterpatterns.com never claimed that the pattern rights belong to them. They were merely re-selling a piece of cloth and using a website to display their merchandise.
While other means could be used (e.g., shredding the patterns) this would increase costs for the merchants. And is not a good thing.
Suppose a frustrated artist threw away one of his paintings in the trash. I come along and pick it up. If I try to sell it on ebay, would the artist have any claim to the money? No, because
1) he discarded it
2) if he didn't want anyone else to have it, he should have made sure it went to the landfill or damaged it enough so that it could not be used.
In similar cases of discarded property where tresspassing was not involved, courts have consistently ruled that those who discard property have no claim on it later. It is up to them to dispose of material properly.
Now if monsterpatterns.com wanted to put patterns on coffee mugs and sell them, then DMCA may apply.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Okay, I may be one of the few slashdotters who sews (for a living, yet... it's slightly more profitable, in the right areas, than writing code from home. Go figure), and it's not really relevant to the issue itself, but...
Monsterpatterns is selling stuff for "30-40% off retail"?? If that's cover price, that's highway robbery, never mind where the patterns came from. McCall, Butterick and Vogue patterns are *normally* sold for 50% off cover. Most places (JoAnn, Hancock, etc.) have rotating sales where one particular line is a buck a pattern.
I guess Monsterpatterns (and the sewing stores) are targeting the folks that want a particular pattern RIGHT NOW and are willing to pay the fairly-outrageous cover prices ($9-15) on them.
(In other Slashdot-relevant news, I'm trying to decide on an appropriate "open-source" license for sewing patterns.)
Slashdot's token middle-aged housewife
Now let's make the analogy more precise. You sell me your CD collection. I've paid for it. But then I say, "instead of shipping it to me, email me the MP3s you ripped, but as far as the physical media, just set fire to it and piss on the ashes -- I've got the MP3s, I don't need the physical media, I just need to ensure that nobody else but me, anywhere, ever, uses that physical media, which can easily be ensured by just destroying the media entirely".
And so you throw your CDs in a recycle bin, trusting that they'll be destroyed. But then some college students dig through your recycle bin and salvage the CDs, the CDs that someone else already paid for, the CDs that you have made a comittment to destroy.
That is piracy, at that point.
Ok, but who is the crook here? The dumpster-divers are just taking what they believe to be trash. You (the CD-thrower-outer) didn't follow through on your committment. Where do you get the right to call the dumpster-divers crooks?
--
It's just the same in this case: the hobby store probably had an agreement to destroy unsold patterns, and violated that agreement by simply discarding the patterns. As a result of that violation, anyone who wanted to could legally take ownership of the discarded patterns - and this company did.
That's the copyright case. The paracopyright (DMCA) case has no leg to stand on, because there was no actual copyright infringement. The right answer, before running off to court, is to send a DMCA counter-notice stating that McCall's does not own the copyright to the web pages in question. These pages are copyrighted, not by McCall's, but by Monsterpatterns; they do not themselves contain the copyrighted patterns. (If Monsterpatterns were disseminating the patterns themselves on their website, then this would constitute copyright infringement, since digitial distribution implies that a copy is made. The same is not true of distribution of envelopes that are not copied.)
I'm not "picking stitches" anymore, I'm "reverse engineering." I'm not "tailoring" anymore, I'm "setting my preferences," and I'm not "customizing a pattern" anymore, I'm "kernel hacking." Ah. Hmm, now that I can talk about it in 1337 code, I feel a lot better about admitting that I (can) sew!
Let's just say I won't be buying any McCall's patterns for quite awhile. I think I'll stick to Burda. (Burda 0wNz0rZ j00!)
I'm not a geek, I'm just a clever script.
The person who is claiming infringement simply needs to send a signed letter under penalty of perjury to the ISP. 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. If a court order is made, then the ISP must continue to have the site content removed; otherwise, they must return the content no later than 14 days.
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.
My wife, for example, is a professional seamstress and in her late 20's. Her job is in the costume/theatre industry. At least half of all the costumes at every show across the country has been at least altered for the actor in that show, unless the show is set in the current day and the costume designer could walk down to wal-mart for the clothing. That's a lot of shows, and a lot of sewing. Within that, there's probably 1-5% new construction in costumes overall for a given show, with some shows being handled locally and some ordering garments. Nearly all of that is specialty, and someone had to sit at a sewing machine to do it. In small community theatres most costumes that aren't available off the shelf or ordered from a rental company are constructed locally, from patterns found in McCalls or other companies.
In addition, and this is a big one, I'm also a member of a historical interest/research/education group with paid membership of over 24,000 nationally and unpaid individuals who also are active in the group numbering upwards of 3 or 4 times that. Of that, I'd say a good 10-30% of the active members (that's out of 100-125,000 people) make their own garments. There are a few catalog/mail order places, and a few merchants who sell clothing at our events, but on the whole the majority of the garments are made by the individuals wearing them or someone close to them.
In fact, between the organisation I'm in and a growing interest in renaissance fairs nationwide, my wife and I have noticed the pattern catalogs carrying a much larger and more correct selection of historical (medieval and renaissance, in our case) patterns. Granted, they aren't perfect, and quite a few of the organisation's members can point out why, but they're a huge step forward from where they were just a few years ago.
Thus, not only does McCalls have plenty of interest in its patterns, I can say firsthand that they're following the changing interests of their targeted consumers as a good business should.
There has been an interesting and similar situation with recyclers who handle the US Postal Service material. Many people join those book and CD clubs that automatically send stuff, hoping that you'll just pay for it. Many, though, return those to the company - or so they think.
The book/CD goes back to the USPS, who then takes out the scrap of paper saying you returned it, and they toss the book/cd in the recycling bin. They would report to the publisher that the product was destroyed, but you would still get credited for returning it. It's amazing that it costs less to just discard the book/cd than resell it.
So, the recyclers were getting these books and CD in their recycled material. Instead of just baling the books and cds, several I know were actually taking the books and cd's out and selling them on ebay and amazon!
Lawyers eventually came to one of the recyclers I worked with. The laywers say they are only purchasing waste paper and plastic in the recycling, and that they cannot sell the products as books and CD. The recyclers say they bought the material and that they own it and can sell it as anything they want.
Well, in my local case, the recycler decided not to fight due to the high court costs and the probability of losing.
I would blame the USPS - they should be rendering the books and cd's unserviceable before selling them to someone else.
Even in paperback books with the covers ripped off, the language warning against stripped books doesn't mention copyright liability. Here's the language used by one publisher:
The sale of this book without its cover is unauthorized. If you purchased this book without a cover, you should be aware that it was reported to the publisher as "unsold and destroyed." Neither the author nor the publisher has received payment for the sale of this "stripped book."
Many publishers amplify on this, stating that if you have purchased the book in question, it is stolen. Now, I don't know if the same rules apply in the case of the dumpster diver, but in the case of the stripped books, you are holding a piece of property that hasn't been paid for. It doesn't matter that you dug it out of a garbage bin or found it on the side of the street...if the bookstore reported it as unsold and destroyed to the publisher or distributor, then it cannot be sold. Does that mean that you are a criminal for possessing it? Beats me, but it seems to me that it puts you in a dubious position of being able to claim any right of ownership.
The booksellers are authorized to destroy the books in lieu of returning them to the distributor, but the distributor retains the ownership of the book. The notice in the front of the book seems to me to be sufficient to inform you of just who owns the book. It's not a copyright issue at all - it's an issue a physical piece of property.
Oh, and just to maintain a thread of topicality, in my city (Boise, Idaho), when you toss something into the dumpster, it becomes the property of the garbage company. Of course, "property", in the sense of the book issue described above seems to take on a rather confusing label. Maybe custody is a better term.
-h-
Altough I agree with most of your points, looking at the common practice in publishing where the discarded magazine is frequently distributed pro-bono to the public.
Though this may not be "legal" does it not also reflect the lack of interest in the material (on the part of the publisher) to assure destruction of the material. Doesn't this imply "abandonment" on their part as well?
Just a thought.