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DMCA Vs. The Sewing Underground

Posted by timothy on from the bold-new-law-enforcement dept.

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."

37 of 545 comments (clear)

  1. How is this piracy? by BrynM · · Score: 5, Insightful

    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.

    --
    US Democracy:The best person for the job (among These pre-selected choices...)
    1. Re:How is this piracy? by eyeball · · Score: 5, Insightful

      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?

      --

      _______
      2B1ASK1
    2. Re:How is this piracy? by Zathrus · · Score: 4, Informative

      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).

    3. Re:How is this piracy? by Frymaster · · Score: 5, Interesting
      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.

      --

      2 1337 4 u!

    4. Re:How is this piracy? by Happy+Monkey · · Score: 4, Interesting

      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?
    5. Re:How is this piracy? by Kaeru+the+Frog · · Score: 5, Insightful

      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.

    6. Re:How is this piracy? by deadsaijinx* · · Score: 4, Informative

      If that were the case, then you couldn't sell your old movie collection at a yard sale.

      --
      YOU SUCK BALLS!
    7. Re:How is this piracy? by sunya · · Score: 5, Interesting

      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
    8. Re:How is this piracy? by stanmann · · Score: 5, Funny

      I would assume he used his digits(fingers) to open the lid.

      --
      Food not Bombs is a nice platitude but it breaks down when you notice that the Bombees are usually well fed
    9. Re:How is this piracy? by DdJ · · Score: 4, Interesting
      a better analogy would be if you threw away your cd collection and somebody picked it up and sold it.
      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.

      And that's how far you have to take tha analogy to make it accurate.
    10. Re:How is this piracy? by David+Price · · Score: 5, Interesting
      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.)

    11. Re:How is this piracy? by GiMP · · Score: 4, Interesting

      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.

    12. Re:How is this piracy? by cgenman · · Score: 5, Insightful

      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.

      --
      The ______ Agenda
    13. Re:How is this piracy? by klaun · · Score: 4, Insightful
      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.

  2. I knew it! by Anonymous Coward · · Score: 5, Funny

    Damn midwestern grandmothers with their sewing circles. Up to no good! Oughta lock the whole lot of them up. Whole generation's going to hell in a handbasket.

  3. DMCA confusion? by Ron+Harwood · · Score: 5, Interesting

    I thought the DMCA was about copyright control circumvention?

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

    --
    BlackNova Traders
    1. Re:DMCA confusion? by Frymaster · · Score: 4, Funny
      it's the (wait for it)...

      dumpster millenium contorl act

      good god, i slay me.

      --

      2 1337 4 u!

  4. This just goes to show... by johnthorensen · · Score: 5, Funny

    That if you put "DMCA" in it, you automatically have something that will get posted by the editors of Slashdot.

    -JT

  5. The Supreme Court ruled.. by MentLTheo · · Score: 5, Interesting

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

    1. Re:The Supreme Court ruled.. by clonebarkins · · Score: 5, Interesting
      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?

      --

      "The evil of the world is made possible by nothing but the sanction you give it." -- Ayn Rand

  6. sue 'em good by frovingslosh · · Score: 5, Insightful

    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.

    --
    I'm an American. I love this country and the freedoms that we used to have.
  7. Supreme Court? by Captain+Rotundo · · Score: 4, Interesting

    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?

  8. It Takes Something This Ridiculous... by Nom+du+Keyboard · · Score: 4, Interesting
    Maybe finally we have something ridiculous enough to finally overturn or rewrite the DMCA.

    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."
  9. Re:Other Reasons for Decline by Torgo's+Pizza · · Score: 4, Interesting
    You'd be surprised. I walked in my mother's house the other day and she wanted to show me her new sewing machine. Gee, how exciting. So I humored her and walked upstairs. Imagine my surpise when it had a LCD display and a USB cable to hooked up to her computer. All her friends at the local Sewing Guild (wow, a guild outside of Everquest!) all had similar models and she "needed to keep up".

    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.

  10. Re:The DMCA by JabberWokky · · Score: 5, Funny
    I think this thread has come to an end. We can stop needling McCalls over this issue. I certainly pin my hope on it, else we destroy the fabric of Slashdot's community.

    --
    Evan

    --
    "$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
  11. Re:Other Reasons for Decline by Zathrus · · Score: 4, Insightful

    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.

  12. Re:Other Reasons for Decline by gwernol · · Score: 4, Insightful

    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?

    --
    Sailing over the event horizon
  13. So let me get this straight... by Newer+Guy · · Score: 4, Insightful

    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!

  14. Re:sad, really by Blondie-Wan · · Score: 4, Funny
    Oh, I don't know; I doubt Ashcroft would really do anything that would keep kids from wearing images of elephants - heck, a few more years and it might be expected of them. Now, wearing hand-sewn donkeys might get third-graders designated as terrorists...

    ;)

  15. LEAVE MY GRAMAMA ALONE B*#@&! by rulethirty · · Score: 5, Funny

    If she can find it cheaper on MonsterPatterns.com then maybe she can afford to give me two shiney quarters for cleaning out her gutters!

  16. Re:Other Reasons for Decline by Gorm+the+DBA · · Score: 4, Funny
    So now this brings up several obvious challenges:
    • Who'll be the first to get Mom's Singer to boot Linux?
    • Who'll write the first sewing machine virus, which copies the contents of the pattern directory and sends it to a IRC bot in #SeW1NGH@CkOrZ
    • WHo'll be the first overclocker to break the 200Msz barrier (200 Million Stiches)? And will the machine be water cooled?
    • And, of course, the mandatory case mods so the lady next door's sewing machine is also her fishtank
    Hmm...this could almost be cooler than I thought at first...
  17. Re:Other Reasons for Decline by angeles13 · · Score: 4, Interesting

    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
  18. Maybe McCall should take a lesson from Madonna... by mykepredko · · Score: 5, Funny

    I just can't wait for McCall to take their lead from Madonna and put on the Internet some of their own "designs" to help thwart pirating of their intellectual property.

    The whole pattern pirating industry would be shut down in an instant as soon as some grandmother that downloaded a pattern called "Playful Kittens" and spent hours stitching it out, ended up with a pillow that says "WHAT THE FUCK ARE YOU DOING?"

    myke

    --
    Mimetics Inc. Twitter
  19. IANAL, of course... by poot_rootbeer · · Score: 4, Insightful

    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)

  20. Okay, let's get the story RIGHT, shall we? by M.+Silver · · Score: 5, Informative

    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
  21. Boycott McAll's by BMonger · · Score: 5, Funny

    Yesterday I was at my grandma's and she was downloading some patterns off the internet... I asked her, "Grandma, isn't that illegal?" She shrugged stating, "I wouldn't have bought it anyway. Plus I don't like those top 40 patterns of old ladies with pineapples on their heads. When I stitch I like to stitch indie stuff anyhow which I can't find at the local needlpoint store." I thought it made sense but somehow... I dunno... it seems like I've seen that argument elsewhere... hmmmm...

    Anyhow to all you grandma's that read slashdot out there... don't buy McAll's patterns! Buy from your local neighborhood needlepoint store!

  22. Re:Right, but these aren't licensed copies by hazem · · Score: 5, Interesting

    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.