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

DMCA confusion?

[Ron Harwood]

I thought the DMCA was about copyright control circumvention?

What, are they claiming that a dumpster is copyright control?

The Supreme Court ruled..

[MentLTheo]

That once your garbage hits the curb, its public domain. I think this should constitute..

Re:The Supreme Court ruled..

[clonebarkins]

That once your garbage hits the curb, its public domain. I think this should constitute..

For my own curiosity, does this include dumpsters? I mean, technically, you could be taken for trespassers if the dumpster is on the property (which it probably is). A friend and I were caught dumpster diving a few years back, and though the cops didn't do anything except get our information (we had no ID on us, and they gave us a hard time about that, but since that's not illegal -- yet -- there was nothing they could do). But they told us that we were trespassing and if we did again they'd arrest us. I'm guessing they were bull-sh***ing us, but I don't really know.

Anyway, I guess my question is, what's the definition of a "curb"? If you hire a dumpster, does that mean the stuff in the dumpster is PD? Or does it belong to the dumpster owner?

Re:How is this piracy?

[Frymaster]

If I'm a musician and I throw out the master recordings from an album I've been working on, I would still own the IP to that material...wouldn't I?

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.

Re:How is this piracy?

[sunya]

the D in the DMCA stands for Digital.. and opening the lid is digital, how ?

Re:How is this piracy?

[David Price]

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."

Note the language here: "unauthorized." That literally means that the publisher does not authorize the sale. But so what? The publisher's authorization means nothing, unless I copy, perform, or create a derivative work of the book in question. When the bookstore cannot sell these legally made copies of the book in question, it tears off the covers and sends them back to the publisher. There is no doubt a contract involved in which the bookstore commits not to sell the stripped books, but if the bookstore violates that contract, or discards the books, then whoever bought the books or claims them from the refuse heap has not done anything wrong: they have acquired a legally produced copy, not stolen property. Unlike dollar bills in a bank's vault, copyrighted works do not magically lose their abstracted value by virtue of legal wand-waving.

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.)

Re:Right, but these aren't licensed copies

[hazem]

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.