Threads of copyright abuse

How far will copyright “protection” organizations go in threatening end users with highly-questionable infringement claims? Far enough to claim that victims of counterfeiters are infringers themselves, as the continuing practices of the Embroidery Software Protection Coalition (ESPC) demonstrate.

A few years ago (see “Embroidering on a Copyright Shakedown Theme”) I wrote about letters the ESPC was sending to users of computerized embroidery machines. The letter recipients were informed that a CD of digitized designs they’d purchased on eBay contained material that infringed on ESPC members’ designs. Far from commiserating with the letter recipient on having been victimized by a design pirate, the ESPC asserted that the very act of purchasing the CD was itself copyright infringement and could carry civil penalties of $30,000 to $150,000 per design. Those who called the ESPC rather than throw the letter away were then told that they must pay $300 or they would be sued.

It’s rather dismaying to discover that the ESPC is still sending out virtually the same letters – the only thing that’s changed is that they now demand $500 not to sue. As improbable as ESPC’s threat is, letter recipients are put in a very difficult situation. “I talked to attorney about it – he said he couldn’t imagine ESPC would actually file suit,” says one recent recipient of a letter over a CD she purchased almost three years ago. “But our judicial system has run amuck so much, who knows? It seems to me if organizations like this can just sue people without cause that the lawyers and/or judges need to weed these people out and tell them to behave and dismiss any of these claims.”

One thing I can say is that I’m unaware of any case in which ESPC has followed through and actually sued someone just for purchasing embroidery software. ESPC has sued some of the sellers of infringing CDs, and it’s presumably from the settlements in those cases that it gets the customer lists to send more of its letters to. I also checked with several others who have prominently discussed the ESPC letters online, and they too are unaware of ESPC actually suing any buyers.

I’m not a lawyer, of course, and I can’t give legal advice. But I thought I would check with someone who does know a lot about copyright law and its abuse. Gregory Beck is an attorney with Public Citizen and one of those responsible for the delightful recent ruling in favor of first-sale rights for software sold on eBay. I described the ESPC letters to Beck and asked for his thoughts.

“Assuming we are talking about people who are innocently buying infringing copies off eBay and not those who are making unauthorized copies of designs and selling them,

the ESPC’s view of copyright law is extreme and quite dubious,” Beck wrote. “Copyright law prohibits unauthorized copying and distribution of a copyrighted work. It does not prohibit purchasing a copyrighted work. Buying an embroidery pattern off eBay, even if the pattern is an unauthorized copy, is therefore not copyright infringement. Copyright law is not designed to punish the victims of copyright infringement.”

“However, with an unauthorized copy of software purchased off eBay there is at least an argument that installing the software on a computer is infringement,” Beck wrote. “That is because the act of installation puts a copy of the software on the user’s hard drive, which some would argue is an infringing copy. Even if this were true, however, an innocent purchaser of infringing software would not likely face the sorts of penalties the ESPC is threatening. Although it is true that copyright damages can be as high as $150,000 for willful infringement, the act of unknowingly buying a copyrighted embroidery design is not willful. In fact, the Copyright Act provides that a judge can reduce damages to as little as $200 for infringers who have no reason to believe they are committing infringement.”

“In any case, it is never a good idea to ignore a threat of a lawsuit,” Beck wrote. “I would recommend that anyone receiving a letter like this consult with a lawyer if possible, including a group like Public Citizen that defends consumers against abusive copyright claims. Of course, if you don’t have a public interest group defending you for free, it can be expensive and time consuming to defend against a copyright suit in court. So that’s one reason some people might want to settle just to give themselves peace of mind. On the other hand, I wouldn’t take the ESPC’s threats at face value either. This kind of threat succeeds because it depends on fear to induce people to settle even when they have done nothing wrong. But it is also doubtful that the ESPC would want to invest the resources in a lawsuit against an innocent purchaser when it stands to gain only a few hundred dollars. There is good reason to take a principled stand against baseless copyright threats.”

Beck says that readers who face an abusive copyright claim can contact Public Citizen by e-mailing litigation@citizen.org. And, while I can’t give you any legal help, anyone facing a similar situation should write me as well at Foster@gripe2ed.com because the more information we have about copyright abuse, the easier it is to fight it.

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