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Source: http://forum.freeadvice.com/copyrights-trademarks-39/embroidery-copyright-buyers-liable-not-278261.html February 11, 2009 - Content has not been altered except to reformat removing advertising. This came from a disscussion board. Some comments have been edited or omitted but none altered or taken out of context. |
Embroidery Copyright ~ Buyer's . . . liable or not? What is the name of your state? Nevada Some may be aware of the current activities of the ESPC (Embroidery Software Protection Coalition). To break it down: The ESPC represents several well known commercial and home sewing/embroidering entities. It has come to the attention of the members of the ESPC that many illegal designs are being sold on Ebay . . . and Ebay has since subsequently settled out of court with the ESPC . . . if one wanted to know the specifics of this settlement, is such available as "pubic record"? and if so, where can it be viewed? The attorney of record is C. Faulker in TX (but there may be a presence of the ESPC in PA too . . . not positive though). The ESPC members state that they are following the music industries lead on handling this case, but what isn't being considered is that the customer base for this situation has some notable differences, one being the age difference (most machine embroiderers are older, who may only have a computer to purchase designs and send said designs to their embroidery machine, which is often hooked directly to the computer) often, they rarely use their computers for anything else, other examples are to follow ~ so they are hardly mass downloaders or mass sharers of such (redistribution). Next, as a result of this settlement with Ebay, the ESPC apparently has gone after a few sellers, part of the sellers settlement is to turn over all information they have regarding their auctions, this means buyers and their information (which I'm sure Ebay can provide as well). From this, the ESPC sends non-certified/registered mail to the buyer (not sure if it needs to be certified or registered) that basically informs the buyer that the ESPC is aware of their activity of buying illegal designs, but apparently never cites the actual auction or other specific information . . . this is a source of confusion for many buyers, since oftentimes, they can'not tell the difference between legal and illegal designs, to elaborate on this concept . . . embroidery industry giants state something akin to, "if you see a set of 10,000 designs for $5, you know it has to be illegal", but this kind of auction does not make up the majority of embroidery design auctions on Ebay, to cite one example . . . and another reason why this does not coincide with the music industries dilemma completely, is that an independant embroidery digitizer, whether they sell on Ebay or privately via their own site, is QUITE capable of creating a machine embroidery design that is equal to, or can even EXCEED anything on a mass produced/sold embroidery design card, many design sets from this type of independant are around $10 (some more, some less) so this oftentimes becomes what the buyer expects to see, price-wise, for about 20 designs (most mass produced cards have 10 to 20 designs on them) one sees much more of these kinds of design sets in auctions then the "thousands for a few bucks" scenario; it should also be noted, that the vast majority of the time, said designs are NOT sent on CD (although for an extra few dollars, this option is usually offered) sets and designs are usually sent as email attachments FROM LEGITIMATE DIGITIZERS. I should note too, that at least one other manufacturer (not a member of the ESPC currently, but still representative of their industry) includes a design CD of around 3,900 designs, FREE with the purchase of their machine . . . To move on regarding the letter to buyers, buyers are then informed, in this same letter, that if they do not cooperate, legal proceedings may/will be pursued . . . C. Faulkner is the attorney of record, and is quoted here: [url]http://tinyurl.com/7wyzs[/url] "There is going to be a class action lawsuit filed against the purchasers in federal court by the ESPC," says Faulkner. Buyers have been told that approximately 170,000 letters went out . . . is it possible to have a class action against so many individuals? Buyers are also being told that if they don't cooperate, they could be charged as little as $30,000 per design, but also up to $150,000 per design . . . in accordance with current copyright law (it's per design, NOT per CD, since each design on the CD is a work in and of itself) in order to avoid this, they are required to sign a statement that they purchased illegal designs, turn over all the seller information to include any "other" information pertaining to any other illegal designs they are in possession of, promising to never transgress in this area again, return all the designs to the original copyright owner, delete any of said designs on their assorted equipment as well as paying $300 (this is the amount I heard was demanded) and by doing so, would not be prosecuted further. To further confuse the issue, the ESPC has a website, with a link to their "Amnesty" program. A person is ONLY eligible if they haven't yet received their letter from the ESPC, the conditions are the same as the settlement letters I've read (only with less "legaleze") same admittions of guilt, same promises not to transgress again, hand over the others and pay the fee of $300 *for* a release that promises not to prosecute in the future (providing no other transgressions are performed on the part of the buyer from theron in). Many of the buyers are little old ladies who are now no longer eating or sleeping, being scared to death, I am NOT trying to gain sympathy for them here, it's simply the real truth for the vast majority . . . they've only been quoted worst case scenarios and are sure they will lose everything they have . . . granted ignorance is no excuse or defense, and while the "worst case" scenarios they're being quoted COULD indeed happen, what is the more likely scenario? Do they have rights? and if so, what are they? can they be viewed somewhere? Oftentimes they will not be able to provide "the burdon of proof" that they had no malice in purchasing said designs (most have done so one time, not consistently). And there are variants in the "illegal" activity . . . for example, some of them have husbands who, wishing to surprise them with all those lovely designs, purchased CD's they hoped their wives would like, having no clue on earth what they were doing . . . these are the kinds of buyers who aren't making a cent off of the designs they purchased, it's just something they want to put on their kids or grandkids clothes. Heck, this is one of those situations where even the sellers of the designs don't have the same MO as most illegal practitioners (i.e. they stay in one place) so the sellers ARE NOT hard to track down, most scam artists put down temporary roots, then pull up stakes as soon as things get too hot . . . not so with these people. I am not making excuses for anyone, copyright as long as it's the law, should be respected and obeyed, period . . . but some (if not MOST) of these buyers granted, made a foolish buying decision, for whatever reason (rarely based on malice) where no commercial gains were made on their parts ~ this should leave the burden of commercial gain mostly on the sellers shoulders, yet more letters have gone out to buyers, the thinking being . . . destroy the market, destroy the livelihood of the pirates, I still think a simple "cease and desist" would have more then sufficed considering who most of the customers are, but that's just MHO. So can anyone enlighten me as to what will "more likely" happen to the lessor trangressors? and considering the simularities of the amnesty program to the settlement letters that are apparently going out, what's the difference? Is the "amnesty" program just a phishing attempt to flush out other buyers? Most people are aware that it is illegal to sell or redistribute copyrighted material, but there seems to be a lot of confusion as to whether it's illegal to purchace it or download it (WITHOUT ANY form of redistribution) so I would appreciate knowing more about that . . . I have heard that the statute of limitations for copyright infringement is 3 years from the last activity . . . but that even these "waters can be muddy" in the judicial system; but is this the basic time frame? Lastly, it is oftentimes a common practice to upgrade to a bigger and better embroidery machine . . . oftentimes an embroiderer wants to sell their old machine and all it's accompanying gear (which might indeed include some design cards) to help finance or recoup the purchase of said new machine, they often do this privately, because they can recoup more this way . . . rather then a "trade in" deal . . . like a car, you could trade it in, or sell it privately, is this not the case with embroidery machines? some are concerned now because they may be found to be infringing in this manner too . . . can anyone clarify any rules/regs on this? and if it's true it's not acceptable, how far can this be taken? These laws are getting out of hand if a person can't sell their own machine. This is long, but it's a complicated issue, and I thank all who take the time to read it and respond. While all responses are welcomed, responses from those who are truly experienced in such things would be best appreciated (the law is confusing enough, much less copyright and intellectual property law) without more heresay.
Thank you and Kindest Regards, |
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Response (edited) 09-24-2005, 12:14 PM divgradcurl Senior Member
Quote: Class action lawsuits are certified when many parties have similar claims against a single (or a few) entities, not when a single entity has similar claims against many entities.
Quote: Just FYI, the actual copyright law provides for statutory damages ranging from $750 to $30,000 per item infringed; the $100,000 figure is only for times when a court finds "willful" infringement, which is a pretty high bar. Plus, one can only request that the court award statutory damages if the copyrights were regsitered prior to the infringing activity taking place -- its not automatic. Finally, these are amounts awarded by a court after a trial for copyright infringement -- they don't just get to charge that amount. They can ask for it, but they cannot compel you to pay it -- only a judge can do that. You can read up more on statutory damages here: [url]http://www.copyright.gov/title17/92chap5.html#504[/url]
Quote: The key point here that everyone seems to be missing is that it is NOT infringement to BUY an infringing product. Copyright infringement is the unauthorized reproduction, distribution, public performance or display, or creation of a derivative work. See 17 USC 106: [url]http://www.copyright.gov/title17/92chap1.html#106[/url] It is NOT illegal to purchase an infringing product, it is not illegal to use an infringing product that you have purchased. If you try and import infringing products, they could be siezed at the border, but buying a CD off of eBay does not make the BUYER liable for copyright infringement. The SELLER, of course, is liable for infringement, but the BUYER is NOT. The only caveat here is that "downloading" an infringing work is probably infringing activity under the AMG v. Napster decision. "Malice" or, more correctly, "intent," isn't even an issue here, because the act of buying a product does NOT consitute copyright infringement. However, if the people were downloading, and that was found to be an infringing activity under the Napster decision, then intent still would NOT matter, because copyright infringement is essentially "strict liability" -- in other words, it doesn't matter if you knew that you were infringing, or intending to infringe -- liability exists IF you infringe, and your intent or knowledge is largely irrelevant.
Quote: Under copyright law, you are free to sell, trade, give away, rent, or destroy any copyrighted materials that you purchase. This is protected under what is known as the "first sale" doctrine. As long as you don't reproduce the copyrighted materials and sell those, no infringement occurs if you sell something that you pruchased. This is the same situation if you bought a DVD at Best But -- you could resell that CD, or give it away as a gift, or even open your own DVD rental place -- as long as you don't reproduce the DVD and sell the reproductions, you are not infringing anyone's copyright. That said, the purchasers of these embordiery machines MAY have some CONTRACTUAL obligations with the manufacturer to not resell or give away the machines -- whether or not that is true will depend on contracts signed at the time of pruchase. But this is a question of contract law, not copyright law.
Quote: These questions get asked pretty often on this board -- hopefully by answering your relatively comprehensive post, this will be the last time, and people can continue to refer to this post for answers, instead of asking the same questions over and over. To summarize: 1. Has anyone ever confirmed that the ESPC has "standing" to even enforce these copyrights? Wihtout proof that the ESPC has been authorized to pursue infringers on behalf of the copyright owners, the ESPC has no more right to enforce the copyrights than you or I do. Further, what proof do they have that the designs that YOU (or any other particular person) purchased are copyrighted by people who have given the ESPC authority? 2. Are the copyrights registered? Without registration, the ESPC (if authorized) or the copyright holder can't take you to court anyway. Although they can register their works at any time, if the registration didn't take place prior to the infringing activity occuring, they can't seek statutory damages. 3. The statutory damages they list are maximums, courts rarely find "willful" infringement without serious intentional behavior, and the stauttory awards won't even be awarded by a judge without the copyrights being registered prior to the infringement occuring. They cannot "charge" you for damages -- only a judge can do that. 4. Purchasing an infringing work is NOT copyright infringement. Using an infringing work is NOT copyright infringment. Downloading an infringing work probably is infringement under AMG v. Napster. 5. Class action lawsuits are "certified" when a large number of plaintiffs have similar claims against a single (or few) defendants. Class Action lawsuits are n ot certified when a single (or a few) plaintiffs have claims against numerous defendants. Before anyone pays any money, they should demand proof that the ESPC has the authority (the "standing") to enforce the copyrights to the works that they purchased. They should demand proof that the copyrights are registered, and that the copyright owners have given the ESPC authority to pursue action on behalf of the copyright owners. They should demand proof that they have actually infringed someone's copyright, including the laws covering their alleged infringement. Until the ESPC provides this basic evidence, nobody should send them money or sign anything. Last edited by divgradcurl; 09-24-2005 at 12:20 PM.
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