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?

[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?

[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?

[sunya]

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

Re:How is this piracy?

[stanmann]

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

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: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.

I knew it!

[Anonymous Coward]

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.

DMCA confusion?

[Ron Harwood]

I thought the DMCA was about copyright control circumvention?

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

This just goes to show...

[johnthorensen]

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

-JT

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?

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.

Re:The DMCA

[JabberWokky]

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

LEAVE MY GRAMAMA ALONE B*#@&!

[rulethirty]

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!

Maybe McCall should take a lesson from Madonna...

[mykepredko]

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

Okay, let's get the story RIGHT, shall we?

[M. Silver]

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."

Boycott McAll's

[BMonger]

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!

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.