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Copyright dispute becomes quite a yarn
By Lisa Moricoli Latham|
Special to The Seattle Times
There's a bunch of angry knitters in town, and they have more than knitting needles to protect themselves. They've hired a lawyer — and armed themselves with irony.
Tired of having some of their eBay auctions canceled because of what they think are bogus claims of copyright infringement, a group of online knitters has started fighting back against Scottish knitting designer Alice Starmore.
In what has emerged as a skirmish in the large battle over Internet rights, Starmore's representatives claim certain online sales related to Starmore yarn and designs infringe on her copyright. The knitters beg to differ.
To pay for legal counsel, the knitters have started bidding up Starmore "memorabilia" in addition to the secondhand balls of yarn they used to trade.
One eBay auction sold a tiny, common seashell that had been included with a shipment of Starmore's yarn from Scotland — for $61 Canadian. Another sold just the tag from a skein of yarn — for $58 Canadian. Thirty-seven "commemorative" copies of heated e-mail debates with Starmore's agents netted $10 each. So far, the group has raised more than $1,500.
Most of the eBay-ing knitters in question are participants at knittingbeyondthehebrides.com, a chat site and e-mail list devoted to discussing the beauty and intricacy of Starmore's designs, which can take years to knit.
But lately, the knitting time of the women (and one man) at the Web site has been lost to the dispute with Alice Starmore's agent in Scotland and her attorney in New York. The money they've raised is going toward the site's Legal Action Fund, where contributors are nicknamed "LAFers." The situation doesn't involve any litigation at this point, but the group is incurring expenses in hiring the lawyer for advice and legal protection.
Sheila Hansford, a moderator of the site who lives in Bellevue, says the wran gling began when the group noticed earlier this year that several Starmore yarn auctions were pulled from eBay. As a test, Hansford put up for auction a kit she had assembled to knit a popular Starmore design. The kit included discontinued Starmore yarns and similar yarns sold by unaffiliated mills. eBay pulled it and several subsequent auctions by Hansford's online correspondents. The reason? Starmore's agents, using what are called "VeRO" provisions (for Verified Rights Owners), had alleged trademark and copyright violations.
"These are private people clearing out their personal stash, not stores or businesses, but individuals' language is being analyzed as if it were," Hansford says. Other auctions that were pulled included one that displayed a photo of a sweater the seller had knit from a Starmore pattern and another one that described the yarn as "Shetland," not "Hebridian," as Starmore's current yarns are known.
Jenna Wilson, a knitter and Canadian intellectual-property attorney who auctioned off the seashell, contends that under Canadian law the item descriptions she and Hansford used "would not be held to infringe Alice Starmore's ... trademark." Hansford's attorney, Robert Ward of Seed IP Law Group in Seattle, contends there's no violation of U.S. law either.
Starmore's attorney doesn't see it that way. "You have to look at each (auction) listing in context," says Susan Upton Douglass of Fross Zelnick Lehrman & Zissu in New York. "As the Supreme Court said about pornography, you know it when you see it."
Douglass contends Starmore has no objection to "fair and nondeceptive uses of her name to promote genuine merchandise." But harming her reputation "by confusing or misleading others is not permissible," she says.
The alleged violations include "wallpaper" over mention of Starmore's trademarked name, false or misleading statements about the similarity and appropriateness of substituting other yarns for Starmore's discontinued merchandise and copyright violations if Starmore's agent's correspondence was copied without permission.
"Mrs. Hansford needs to get a life. Her endless sniping and jealous rage are getting tiresome," Douglass says.
Hansford says the group is trying to treat a serious situation with humor. "It would be very easy to become bitter and angry about this, so we're trying to assert our rights with a smile on our faces," she says.
Ward calls it "outrageous" to claim an eBay seller can't use Alice Starmore's name to list a genuine article or even to advertise a replacement article, no matter how many times that name is mentioned. "How many millions of auto parts are sold with 'replacement for Genuine GM part' on the label?" he asked.
How eBay sees it
eBay has little discretion in dealing with auctions canceled under VeRO provisions, says spokesman Kevin Pursglove. The VeRO program was created to comply with the Digital Millennium Copyright Act, and those who subscribe to it have to sign sworn statements that a violation has occurred.
"It's possible that VeRO members may use them inappropriately and, if they do, they subject themselves to possible suspension," he says. But he adds, "Ninety-two to 93 percent of VeRO cancellations are never challenged by the sellers, and there's never been a VeRO lawsuit."
Pursglove says a lot of disputes arise from the lack of knowledge people have on intellectual-property issues. "Just because you paid for an item doesn't allow you to sell it any way you please, because there's often legal language that goes along with the purchase that restricts that opportunity," he says. "Some VeRO members are aggressive in their use of the program," he adds, "while others realize that most sellers are just amateurs. However, some rights holders are very aware that allowing one person to step over the line now will erode their right to legal recourse in the future."
Lisa Moricoli Latham is a free-lance writer in Santa Monica, Calif., who contributes to national publications.
Copyright © 2003 The Seattle Times Company