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Etsy & Etsy News
|Last Updated September 22, 2010|
|You will note that there are a lot of pundits who will tell you what you can and cannot do with patterns, licensed fabrics, embroidered images, pictures of products, and descriptions, but none can point you to specific court cases or federal law that supports their claims. Etsy is one of those web sites. Etsy joins our list of moronic and self-serving corporate attitudes all in the name of big bucks and the seller be damned. We rank them just after eBay on the stupid scale.|
|The Etsy News makes the "claim" in its Mission that it is the "Unofficial news for Etsy's buyers and sellers" and that "UEN's editors are NOT employed by Etsy or affiliated with Etsy; we just care about the community". However, we believe that in order to use the "Etsy" name they have either official permission or implied permission, and therefore Etsy News has more than some responsibility. Also, a certain "Sarah" appears to have strong ties to Etsy from comments on the site (FYI - "Etsy" rhymes with "Besty"). These strong ties refute the presented appearance of no affiliation (or sponsorship) with Etsy.|
|Etsy terminates listings much like eBay, without any real regard for the rights of the sellers. Gutless like eBay, Etsy seeks no real confirming information about the alleged infringements. All that is required is someone claim infringement and Etsy folds like a cheap lawn chair. In fact, Etsy does not even want the sellers to tell anyone what was removed or by whom. This is what Esty includes in its "Listing Deactivation Notice for Infringement":|
"This is a confidential matter, and we request that you not discuss this issue in the Etsy Forums or otherwise violate the confidential nature of this email."
|Why? What is the secret? That Etsy is cowardly like eBay? There is nothing confidential in an email unless all parties agree to it.|
|Etsy is just as cowardly as eBay when it comes to the rights of sellers. A forum begun at 11:00 am, October 24 2009, titled "Licensed Fabrics", was terminated at 11:16 am, October 24 2009, a mere 16 minutes later. We suspect the Mis-Information Mavens of Etsy could not stand the letter that was posted nor could they tolerate the posting seller being happy that she had backed Marvel down on the use of licensed fabrics. The Mis-Information Mavens of Etsy are a collection of self-righteous and over-bearing sellers who insist on spreading their false interpretation of IP law like it was cheap manure while viciously attacking anyone who dares disagree with them. It appears this klatch of Mavens wasted no time "reporting" the positive messages so Etsy Admin felt compelled to remove them and halt the forum.|
|Seems "Sarah", who appears to be one Sarah Feingold, Esq.: Attorney and Jeweler (Sarah is Etsy's in house attorney), posted what we consider inaccurate statements on "site terms" and "copyright-branding" concerning copyrights and the format appears to give these statements credibility, thereby ushering Etsy and Etsy News into the Hall of Shame. Sarah's claim, "the First Sale Doctrine does not typically apply to a product created out of the licensed character. Therefore, it is unlikely that the First Sale Doctrine will protect a product created out of a licensed character" is directly refuted by Precious Moments vs La Infantil, 971 F. Supp. 66 (D.P.R. 1997), where the federal court denied an injunction to stop La Infantil from using licensed Precious Moments fabric to make and sell bedding.|
|It is alo refuted by LEE v A.R.T. Company, 125 F.3d 580 (7th Cir. 1997), where the 7th Circuit Court of Appeals stated that when A.R.T. Company, bought and then mounted the works of art sold by Lee on ceramic tiles (covering the art with transparent epoxy resin in the process), and then resold the tiles, was not infringing, upon the copyright by Lee. See also Gracen v. The Bradford Exchange, Inc., 698 F.2d 300 (7th Cir. 1983), supporting the claim that the mounting process cannot create a derivative work because the change to the work "as a whole" is not sufficiently original to support a copyright.|
|In Scarves By Vera, Inc. v. American Handbags, Inc, 188 F. Supp. 255 - US: Dist. Court, SD New York 1960, American Handbags was using towels manufactured by Vera to make handbags for sale. On some of these handbags made with plaintiff's towels there could be seen, at the bottom, the name Vera coupled with the figure of a Scarab or Ladybug, all three of which were registered trademarks of Vera. The judge rejected Vera's copyright claims.|
|Sarah, did you even take trademark and copyright law in law school? Or did you sleep through those classes as well? Your statements, as Etsy's in house attorney, defy logic and comprehension.|
|Sarah's next statement, "When you buy a copyrighted good, for example licensed beads or stickers that have a character on them, you are only buying the physical object and not any of these exclusive rights" is refuted by the Supreme Court:|
"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
|Her next statement, "When you take a licensed character and create a product, for example a necklace or a bag, you are transforming the good, and most likely creating a Derivative Work" (emphasis added) is refuted by the Precious Moments case and by:|
|In order for a work to qualify as a derivative work it must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989); see also L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976). In LEE v A.R.T. Company, the 7th Circuit Court of Appeals stated, "...A.R.T. tried to obtain a copyright in one of its products; the Register of Copyrights sensibly informed A.R.T. that the card-on-a-tile could not be copyrighted independently of the note card itself." See also Whimsicality v Rubies Costume, 891 F.2d 452 (2nd Cir 1990), "We have long held that clothes, as useful articles, are not copyrightable."|
|Sarah, do you really have any idea what a derivative work is? Perhaps Sarah could explain how taking a piece of fabric and making a bag from it qualifies the bag to be copyrightable? It isn't and never could be. A derivative requires the "transformation" of the copyrighted image into something new. The simple act of cutting and shaping fabric with a licensed image on it does not transform the copyrighted image. Sarah needs to take a close look at these two decisions from the 2nd Circuit Court of Appeals where the court states that "clothing is not copyrightable". Since the bag cannot be copyrighted, where is the infringement you claim? Since the fabric wasn't copied, or the characters on the fabric copied, there is no copyright infringement. There is no trademark infringement because you are not counterfeiting a product; you are using genuine material. See also , Galiano v Harrah's, 416 F.3d 411 (5th Cir 2005) where the Court of Appeals stated:|
Because copyright law does not allow one to copyright "clothing designs" in which the artistic and utilitarian qualities are indivisible, the court reasoned, Gianna's copyright could not extend to the designs for the wearing apparel depicted in the illustrations referenced in her Certificate of Copyright. The court therefore found that Gianna's copyright is valid only to the extent that it protects the two-dimensional artwork, i.e., the illustrations and silkscreens that comprise the collection.
|Her last statement, "For example, if I make and sell a quilt from licensed fabric, a consumer may assume that the quilt is an officially licensed product" ignores the requirement under trademark law, the Lanham Act specifically, that the seller must do something to deceive the public into believing that the quilt was manufactured by the trademark owner. This is why we suggest crafters use the Tabberone Disclaimer. Many federal courts have ordered the use of dislaimers to remedy possible public confusion. Sarah, you are a moron who is spreading the false assumptions upon which many people labor. It has been our experience that far too many people on the Etsy.com web site believe you. You are doing a lot of harm.|
|Etsy was originally on the Craft Sites Hall of Shame page which was added July 7, 2007. On September 11, 2009, this page was expanded, given its own page listing and the following was added:|
Etsy could, like eBay could (but does not), demand a detailed explanation of alleged infringement
and examine that explanation to determine the validity. Neither the DMCA or federal law holds the IP provider
accountable for refusing to remove objectionable material, it only provides a "safe harbor" for those that promptly
removed allegedly infringing material. It would still be up to the rights owner to prove contributory infringement,
which would be very difficult if the IP provider had a reasonable doubt as to the validity of the alleged infringement.
Etsy does not demand a detailed explanation of alleged infringement nor does it appear to care.
The only plus we see in the Etsy cowardice is that unlike eBay, Etsy mentions the counter notice
in the take down and will use it for trademark and patent claims whereas eBay does not.
Etsy has joined eBay in telling lies and fabricating information. Caving to Marvel's letters of intimidation, Etsy is terminating lawful auctions for items made from licensed fabrics sold by Marvel. Why? Because, according to Etsy, some yoyo named Gregory Pan, Contracts Manager of Marvel Entertainment, has claimed certain items are "not authorized". What a bunch of wussies.
Etsy can't give a better and more accurate description of what is meant by the comment from Gregory Pan, Contracts Manager of Marvel Entertainment, because Esty does not ask for one. Could Etsy require more detail and then could Etsy make a determination if the claim were prima facie valid? Etsy could but like eBay, Etsy is afraid of lawsuits. Etsy is more concerned about lawsuits that would not happen than protecting the rights of the Etsy sellers, who like the eBay sellers, are the primary source of revenue for the site.
And Etsy is lying about liability. In Etsy's Copyright and Intellectual Property Policy (http://www.etsy.com/copyright_policy.php), Etsy falsely asserts to the rights owner, or to the seller who might challenge the takedown,
"If you materially misrepresent that a product or activity is infringing your intellectual property, you will be liable for damages (including costs and attorneys' fees)."
According to whom? The DMCA states the requirement is that they "knowingly materially misrepresent" the facts (emphasis added). Etsy
left out the word "knowingly". That is also trumped by the low standard of the
DMCA for a "good faith belief" for issuing a takedown. If the rights owner has a "good faith belief" then there is no way that they can "knowingly materially
misrepresent" the facts. Even in cases where the courts have found the rights owner knowingly lied, damages have not been assessed. That statement is a lie.
If the courts will not hold the rights owner liable, how many times do you think they have held the alleged infringer to be liable? First, how many rights owners have actually sued after receiving a counter notice? Very few. Why? Because most legitimate infringing activities will be stopped with a lawsuit, not with a takedown. Going after small sellers is nothing more than resume enhancement. Besides us, we know of several others who have been in court with DMCA abusers, and won. But the list is short.
UMG Recordings vs Troy Augusto, 2008 WL 2390037 (C.D. Cal. June 10, 2008) Order by District Judge dismissing lawsuit by UMG which alleged Augusto was illegally selling promotional CDs. Judge found unsolicited CDs sent to music industry recipients were gifts and the attached license was invalid. Accordingly, under the first sale doctrine, Augusto was free to re-sell these CDs on eBay regardless of restrictions printed upon them.
Timothy Vernor v Autodesk C07-1189RAJ, (W.D. Wash Sept 2009) Second order by District Judge stating that Autodesk's software was SOLD NOT LICENSED and that the Plaintiff, Timothy Vernor was entitled to use the First Sale Doctrine as a defense to alleged copyright infringement. Autodesk repeatedly terminated eBay auctions for their software.
In Online Policy Group, et al. v. Diebold Incorporated, 337 F.Supp.2d 1195 (N.D. Calif 2004), the court granted damages against Diebold for "knowingly" filing false DMCA takedowns.
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.
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