And the witch hunt starts….

Seems like the journey through machine embroidery is never without some amusement, some drama and or some antics, LOL, the latest being…oh yea, witch hunt. Which witch hunt?? Well, an interesting email I had yesterday asking me if I was a member of the Embroidery Software Protection Coalition (ESPC) and if I was not a member, was I a supporter of the organization.

To those reading this for the first time, I would suggest they go and read the “Birds of a feather” blog to catch up a bit on what all has been transpiring to bring about this question and therefore my blog. To those keeping up with the saga…read on.

As I had written earlier in either one of my blogs or my comments, ESPC is a tie on organization to the Home Sewing Association which is probably one of the oldest Sewing groups in the US. With the changing of the sewing industry and the merging of the sewing/embroidery combo machines, it is only reasonable, that the ESPC, which was the representative of the major embroidery concerns, blend itself with the HSA. Software is what runs many of our home sewing/embroidery combo machines and most of the embroidery designs are licensed via major embroidery concerns to the machines. As one of the major concerns lately and still growing is the piracy of embroidery designs, ESPC monitors many of the embroidery world groups etc on a continuous basis. Ebay happened to become a major concern when the sales of pirated designs became rampant. With Ebay being a middle man company, there was absolutely no liability on it to stop any one from listing anything under the sun. Those who love to make a quick buck decided to take all their lootings from any of the warez groups into the Ebay arena to sell at any cost just to make a few bucks until ESPC descended heavily. Sellers and buyers both suffered heavily. Sellers knew they were wrong but the buyers….well, did they get taken for the ride?? Yes, and no. Some of the buyers had no knowledge that buying pirated designs would land them in further trouble. I say this because there are some who had absolutely no idea, but the majority who buy on Ebay had a very good idea of what they were doing (read comments in glimpses of the internet). But buying pirated design cds is not a crime, never has been and is not now to my knowledge. However….ouch and this will hurt…there is a little bit of the clause of reproduction and distribution that infringes upon copyright. What does that mean you say? Only cds were purchased not reproduced or sent to anyone. Well, scouring through the various Ebay chat boards I found this info which sums is up pretty well…

“The purchase alone of an unlawful copy of a copyrighted computer program is not an infringement of an exclusive right of the copyright owner, yet the use of such a copy after purchase would violate the copyright owner’s exclusive right of reproduction. When a computer program is copied onto a computer’s hard drive or copied into RAM in the course of using the software, a reproduction is made to the software. This reproduction would constitue an unlawful reproduction of the copyrighted work. So, while one may “buy” illegal software, the purchaser cannot “use” the software purchased because “use” entails reproduction. Since use is the obvious purpose of the purchase, that purpose cannot be achieved without violating the Copyright Act”.

So, what this means is that as long as you have purchased illegal cds, you are safe. As long as the illegal cds are wrapped in shrink wrap or some such thing which shows for sure that the CD has not been opened, you are safe…but, if the CD is opened, inserted into your computer…you are had. You just violated the original creator’s copyright and under US laws that is a crime. Hence the hulabaloo over “injustice” all over the embroidery forums.

Sorry for digressing there, so what’s this deal about the witch hunt. Well, some brave souls decided it would be great to boycott anyone and any company who is with ESPC (mind you they do say that they believe in what ESPC stands for but they do not like their illegal tactics). So they sent out troops emailing and visiting every embroidery website they can come across to find out who is affiliated with ESPC…..Bad move. I have always believed in the law and that the law must be upheld at all times for there to be sanity and peace. But if I do not believe in the law, interpret it my way instead of how it is.. and while doing such, hinder the process of the law, what am I doing? Aiding and abetting. You got it. But you may ask, who is aiding and abetting, the idea is to stop the extortion and illegal practice of a company (read birds of a feather and Internet glimpses).

And I suppose you must know what my answer is to the lady emailing me…No, I’m not affiliated with ESPC but I support the organization as it is the ONLY avenue I and many other digitizers and those machine embroidery enthusiasts have in the way of protecting their rights and guiding them through our modern space age. I personally do not know any lobbyists, neither do any of my other embroidery friends. There is no way I or a few of us can make any changes to the laws to bring them up to date with the changing of times, especially where machine embroidery designs are concerned. ESPC represents huge concerns and even though it does not represent a small time digitizer like me, yet I believe and know that the changes in laws that the organization has brought about are tremenduous and have a great deal of positive effect for me and everyone in the field of machine embroidery, be it digitizers or buyers of designs. Like drug busts, there are DMCA busts every day and all because there is an organization out there that looks at the bigger picture.

So, coming to the witch hunt. The witch hunt is commandeered by a group who themselves are lost in understanding and knowing the laws. Some of them are the very same “birds” who know why this is important…anything to stir up the public against an organization that took away their “ka-chang”. The quest: find and boycott anyone that supports the ESPC….well, now that would be just about any embroidery machine company, any of the major embroidery houses and most everyone of the HONEST digitizers (who although not affiliated yet support the beliefs of ESPC). So who do you have left not to boycott…why the “birds” of course….LOL, get it.

A dear friend and you must go and visit her site, Carolyn Faulk of http://www.carolyndesigns.com/ created a special design to support the troops in the Gulf calling it the “Support the Coalition Troops” design. The lady is an excellent designer and a wonderful caring and gentle person, not to mention one of the few whom I respect greatly not just for her character but also her digitizing skills. Well, when people are incited, they tend to become truly excited and do not think logically. In one of the embroidery groups of a leading supporter against the ESPC there was a post in today’s messages asking that someone had found a website that could be affiliated with the ESPC and to watch out for it. The website named was that of Carolyn Faulks’. Good going guys!

So the witch hunt has started and the “birds” are still at their individual thinking patterns of twisting facts, twisting the law to represent it as they perceive it rather than to understand how it is. Reading through some of the latest posts of the “infamous rebel group” I was amused to find that the simple words as copied by some are not understood (and English is not my mother tongue…LOL) rather twisted to mean anything else which it no where even closely reads. Oh btw…looking at the list of the members of the “birds” I see that the infamous “rebels” of days gone by have surfaced…well one has openly(but that one made a public apology sooooo….) where the other still hides behind her various pseudonyms…

Friends, think logically, think reasonably. Where does this all end and where do we go with all the hatred and suspicion. Education is the key in understanding and preparing for the future. Instead of heated “lynch mob” activities, which can lead to some of the innocents being hurt the most, why not try and understand where this is all coming from. Everyone makes mistakes, learn and move on. And why am I concerned you ask…why very simple. I know a lot of these friends who are being taken for a ride for the benefit of  the “birds”. I care about them as they will be the ones hurting in the end, not the “birds”…count on it.

Addendum: Please do read the comments as posted in Perils of being an IP purchaser.

Comments (20)

KeshnaJune 13th, 2006 at 1:46 am

Hi Sadia,
Great article! I remember reading about this on at least one Yahoo Group. Thank you for a well written “Designer’s Perspective”. Situations like the above are 90% of the reason I ‘lurk’ the embroidery groups. (http://www.keshna.com)

RESPONSE:

Thank you Keshna. Sorry that you lurk as that is what I believe caused this problem to escalate to where it is now. Ofcourse I do understand that mods at most of the groups would rather not have any such topics discussed, so where does one go, LOL. I’ve hyperlinked your website (neat blog and very interesting designs). Hugs, Sadia

 

walfordJune 13th, 2006 at 6:34 pm

i have bought many times from carolun falk and she is a wonderful digitzer so sorry to see how nasties can hurt someone innocent. Thank you for letting me see the other side of the picture.

MaggieJune 17th, 2006 at 6:19 pm

My comments to all this crap is that the ESPC is basically owned and operated by Gary Gardner and Carole Faulkner, and Donna McCauley of Action Tapes. The so called major companies…lets see..Action Tapes, Great Notions, Amazing Designs…all privately owned by Gardner and his coharts. Bernina, oesd are the same one and they purchased Great Notions. Still same two companies. You throw in Tacony who owns and holds the trademark for Amazing Designs, and as for as Viking, their designs are done by OESD which is owned by Bernina.. Major companies…I think NOT. Just a couple of bad apples who need to be thrown back in the garbage can where they belong. When a company uses criminal tactics like Al Cappone and the other mafia did back in the 20′s and 30′s to force people to pay up or else, they send out individuals to enforce terror on everyone throughout the entire 50 states. And the story began. Thank God for the RICO Act and the Federal Bureaus who enforce those laws. These people who are threatening sellers who sell designs, and file copyrights with “Unknown” or “Not Available” as their “PROOF” with the Federal Courts and the Copyright Office need to be horse whipped. If Great Notions actually owned the designs, or OESD, then I would say, yes they have a leg to stand on —but they have NEVER -EVER PROVEN IN COURT that anyone has ever pirated or sold any of their designs ever on the ebay site or on private websites. NOW THAT’S JUST SAD! They are forcing sellers under terror and duress to turn over information thru strong arm tactics just like the mafia, and people are doing whatever to try and get some peace from this terrorist group called the ESPC. Then they take their ill-gotten information and turn around and hand it over to the person sitting at the next desk, STILL IN THE SAME OFFICE AS THE GREAT NOTIONS..and say..NOT THAT WE HAVE TERRORIZED THE SELLERS, GUILTY OR NOT…LET’S GO AFTER THE BUYERS..NO MATTER WHAT DESIGNS THEY PURCHASED, AND LET’S REALLY SCARE THE CRAP OUT OF THEM….LET’S FORCE THEM TO PAY UP AND MAKE THEM THINK THEY HAVE BROKEN THE LAW EVEN IF THEY HAVEN’T!!! What the heck, they’re only stupid and ignorant of the laws, and they would rather fork over the $400 than pay an attorney $700 to fight us. They’re foolish enough to sign a letter sent out by us and demanding $400 for so called Amnesty, which don’t really exist!!! But after all, they think they broke the law…we told them they did…and they believe it…So let’s make sure we can come back at a later date and really screw them over. Let’s make them sign a statement of Guilt, so we can come back at a later date and really screw them. Boy, Won’t they be surprised when they find out they not only just had $400 extorted from them, but think of how they’ll feel really stupid when we hail them into a texas court for signing they were guilty. Well, I don’t think every American Citizen should be subjected to this kind of mafia terrior, from Cappone or the ESPC. I would rather boycotte the members of the coalition, then be taken for a ride to the local jail whem RICO laws get done with them and the IRS. How can they say soneone is breaking the law, when they themselves, do NOT have a business license to operate a business in Pennsylvania or Texas??? When you can trow rocks and not break your own windows…them perhaps..you might be in a position to throw rocks. Till then, you should really keep your own doorsteps clean, or you may be in the crapper with the ones you so strongly support.

Response:

Maggie, my response is very simple. LOL LOL LOL LOL. That is right, it is so very funny the advice you have given above and I believe I know exactly where it is coming from. Till you can learn all the ins and outs of law, I would refrain from listening any more to your buddies at the “rebel group” of the “birds”. That group and the majority of the movers and shakers are the ones that were selling illegally. They themselves know all the info they gave (not under duress but of their own free will to save their own skins) and now they claim themselves to be the saviours. I have no idea where you have deduced any of the information above but it sounds like a very immature reasoning. As far as the Rico act is concerned, my dear that does not apply here…I would 100% guarantee you that. The amnesty is the only way to clean the slate and start again, whether good or bad, your choice. Meantime,you can listen to your buddies there making up all the mumbo jumbo and think you have learned something whereas in truth you are only putting yourself out more towards trouble. Btw, I never throw rocks, I only give advice. Hugs, Sadia

 

MaggieJune 17th, 2006 at 10:35 pm

I don’t belong to any “group” as you indicated and from what I have read on ebay and other informative sites. NO cases have ever gone to court. Guess we all know who’s the scaredy cat here…don’t we…they are all in TEXAS!!!!! except you of course, and while you’re throwing out your corn for all the birds to scoop up, guess you’ll be feeding the crows, that’s the only birds of a feather that you will find, why do you suppose NO MAJOR COMPANY, has ever joined the ESPC group…they don’t want their business totally ruined. The ones who are fighting the battle in the newsarticles are the ones that the scavenget gulls are extorting money from the innocent buyers. The ones who are fighting the true battle are the ones who are fed up with the crap that the mafia in texas are out to harm. The Justice department in Texas have been doing some looking at these tactics, as well as other states. The attorney general in TEXAS, says FILE CONSUMER FRAUD COMPLAINTS WITH THE FRAUD DEPARTMENT AND FILE A COMPLAINT WITH THE BAR ASSOCIATION IN TEXAS. Got that Babe in writing…straight from the horses mouth. As for the RICO Act….I wouldn’t stand too close or when the S____T does hit the fan, your little BLUE BIRD OF HAPPINESS just might be one of the old crows crapping on your head…They will not only take down their own company, but every one who supports them. Look just how many are filling the prisons today from the mafia that ran rampit in the past. Don’t think that can happen again…Don’t close your eyes too tight, you might be getting a wake up call. A good lawyer with a justifiable case wouldn’t run and hide like a snake, now would he??? If he could PROVE anything, he would be willing to, wouldn’t he? I’d rather have a good lawyer work side by side with me in a court than one who shouts to the top of their lungs that they are being so wronged, and then crap their pants, when someone from the crowd says…ok bud…prove your point!!! So far, all that the ESPC and their blind followers have accompolished is a load of crap…they have NEVER EVER proven anything was pirated or sold, ask any of the judges in the Northern District of Texas, for example….It’s a big joke around the “old pot belly stove, many of morn over coffee, just how many cases they are closing out to default judgements.” Seems like a lawyer from Texas, just gets lazy sometimes lying out there in the sun. Must be heat stroke or something that makes them think that everyone is out to get them. But you know what dear girl…they are out to stop the independent digitizers too. And if you check the cases filed…you, provided you, and your coharts, can read english, and if you have even a small understanding of the law, you would see that what I am saying is absolutely the truth! So, dear girl…when you finally take off the blinders and open your door…don’t be surprised if the process server isn’t standing at your door. You too are an independent digitizer, or so you claim. But then, perhaps you only think they are your designs…according to some, there is only ONE and they are the ONE!

Response:

Maggie, interesting what you say about the AT of Texas. If indeed he/she has issued this in writing, then please do post the link so all can see.As far as I’m concerned, please I appreciate your concern, but not to worry, I can hold my own, have done so and will continue to do so. Thanks for the concern, Hugs, Sadia

 

nana2bJune 21st, 2006 at 5:55 pm

Sadia I don’t know the group you refer to but I do belong to a Yahoo group created for the buyers that were sent letters from the coalition. I have been your customer for a long time and admire your capabilities. The group has now moved to msn where we chat every night. I see where you are coming from but seems to me there are a few who in our chat constantly bad mouth you. I have to admit there are only a few who do this. Could you not come to some terms with these people instead. Maybe you are not understanding them and they are not understanding you. I do not like the tone some of them use and I know you are not like that at all. I don’t want to see you hurt but at the same time there are many of us who bought these cds from ebay and we still do not understand what is right or wrong. Wish there was some way that everyone could come to terms and find a solution.

Response:

Nana, I appreciate your comments and believe me I completely appreciate your wish. I wish for world peace, I wish for eradication of hunger, I wish for a world where there are no boundaries of color, race, creed and I wish for a hundred other things. Unfortunately the wishes do not come to us without all of us doing something about them. We all have to work together to get those wishes and to make our world better. If we only sit and talk about it, chances are slim that our wishes will come true. If there is a good somewhere, we should all promote it for it to become even better. If there is a bad thing happening somewhere and we do not do something about it, it will continue to grow until it is beyond anyone’s capability to correct. Our world has moral values and most of us believe and carry out those every day. Then there are those who believe in exploiting the very core of goodness by taking advantage of it and using others to benefit their own self. Ofcourse, those who try to eradicate the evils from society will always be talked about as being bad, it is the way of things. I am not hurt by these shoddy methods of hurting morales and or personalities. But I appreciate others who care. My advice to all, please if you see something wrong, do something about it to correct it or else it will grow to enormous proportions where no one will ever be able to rectify it. The sellers on Ebay are extremely upset as many of their “incomes” have now been crushed. They were gleefully trampling over other’s honest work and making a good profit from it. Because now it has been crushed, of course they would be angry and would do anything to justify their own self esteem.

As far as what is right and wrong, Nana, may I suggest to please read some of the blogs especially those pertaining to IP rights and wrongs. I wish I could help everyone and I try. If there is something that you are confused about and or need help with, please feel free to email me privately and I will try my best. HUGS, Sadia

 

MaggieJuly 11th, 2006 at 4:54 am

This is the response from the Attorney General regarding the Suits and letters by the ESPC. They advise you to contact the Bar assoc. the IFCC, and others. Guess they think there is something worth investigating after all. Perhaps you should wake up and take notion.

“Public Information”
Thu, 27 Oct 2005 09:13:11 -0500

Dear xxxx Thank you for contacting the Office of the Attorney General. Your letter has been forwarded to the Consumer Protection Division (CPD) for review. CPD monitors trends in business practices and determines priorities for enforcement. When appropriate, CPD takes action to stop violations of Texas consumer protection laws. We appreciate your assistance in this effort. You may also wish to contact the Internet Fraud Complaint Center (IFCC) with your concerns. Because internet complaints are likely to cross jurisdictional lines, the IFCC acts as a clearinghouse for law enforcement nationwide. Your complaint to the IFCC will come to the attention of our own investigators as well as other jurisdictions who may be able to assist you. You can file a complaint with the IFCC on their website at http://www.ifccfbi.gov/index.asp. The State Bar of Texas is the agency with authority to regulate attorneys in Texas. If you have a complaint about the actions of an attorney, you may wish to contact the State Bar’s Grievance Committee at (800) 932-1900 or through their website at Again thank you for writing. Sara Almanza Public Information and Assistance Office of the Attorney General of Texas >>>

SanadeApril 18th, 2007 at 7:01 pm

It looks as though most of ESPC’s members have disbanded over it’s heavy handed tactics. The ESPC website is gone as well. Too bad this organization has to use tactics worse than what they accused others of.

SadiaApril 18th, 2007 at 9:22 pm

Welcome again back to the real world…and the name now is Sanade? Is the hate in your heart so much that you cannot see beyond its ugly haze and see the world in its reality and the laws that mankind has created to keep off the evil that lurks amongst us. To answer your question….look again. The organization you know as ESPC may not be called exactly that today but it is still there and it is something even bigger. My friend, my best wishes to you and your buddies. HUGS, Sadia

SanadeApril 20th, 2007 at 8:14 am

Sanade has always been my name and perhaps your blog has just outrun it’s course. I used to like your site but this blog of yours has ruined it for a great many of us. Hopefully, it will go back to the freindlier place it was.

chrisJune 4th, 2007 at 12:59 pm

ESPC’s website is still there:
http://www.embroideryprotection.org/
and no their members haven’t disbanded

BruyereJune 4th, 2007 at 2:21 pm

People seem to be getting “off-message” on the ESPC. I don’t think anyone has a problem with their purported goals. It’s their methods that anger and disgust so many people. Somehow they have obtained lists of purchasers of software they claim was illegally stolen. From these lists they have made up a list of purchasers – they now have our names, our addresses, and probably our credit card numbers and who knows what else.

Then they mail us – the purchasers – a threatening and very intimidating letter accusing us of criminal acts that can only be addressed if we contact them directly, using ONLY the phone number they give us and warning us not to try any other approach (it can only get worse, according to them, if we do). We call, and the calls are never answered except by a machine. A few days later someone calls us and tells us the bad news – we need to send the ESPC the offending material we have purchased, sign a legal-sounding document admitting guilt and swearing never to do it again, and, oh yes, send them (in my case) $300.00.

At no time do they ever name the original copyright holder – why should we blindly send software to them and not the person offended? They refuse to give any detailed information as to how they arrived at the monetary figure, what it will be used for, or who authorized them to collect it. And of course they do not explain why they are trying to force us to sign an admission of guilt, for something we did not even realize, usually, that we were doing wrong.

They are, however, consistently threatening, using legal language, threats of legal action, citing vague cases involving the recording industry, and so forth. Somehow we are supposed to believe their letter which tell us we are NOT to believe people selling designs on eBay.

And if you don’t respond to these demands they send an even MORE threatening letter saying they will be forced to pursue litigation against you.

I’m sorry, but these tactics are not designed to protect anyone, they are designed to enrich the ESPC – and give them a nice little collection of software sent to them also. If this isn’t blackmail (“I know something about you and I’ll tell if you don’t do as I say”), it’s extortion (“pay up, sign these papers, hand in the software or you’ll be sorry”). In fact, it’s the old Protection Racket (“Who are you protecting me from?” “Me!”)

THATS why we are so angry. Any legitimate organization with reasonable ways to fight ANY copyright protection has my support, but these people are clearly running a racket and it’s offensive.

And by the way, what kind of “Protective Coalition” tries to frighten and drive off the very customers its industry depends on?

Bruyere

SadiaJune 4th, 2007 at 4:10 pm

Bruyere, thank you for your point of view. To respond simply. Please recheck the letter received, is it really threatening? Is there an accusation or truth in there? Is the letter really intimidating? If you were stolen from time and again, what would your reaction be? Would you send out a letter perhaps similar to what ESPC has sent?
You have a right to be angry and upset. There is no blackmail here nor is there any extortion. Blackmail is when someone holds a gun to your head (figuratively) and demands…same can be said of extortion. There is no such deal in this letter. It gives you a choice. Whether you follow up on the choice or not, that is your choice. What you don’t say is that the letter has suddenly made you aware of and that is a realisation that perhaps the “little $$” spent where you thought was a bargain may not have been such and you will be careful in future from whom you purchase.
Your information was given to ESPC by the sellers who were caught selling on EBAY. This is quite apparent and has been showcased by the many cases that appeared but suddenly have done an out of court settlement. You trusted those sellers to give you a bargain…well, they are singing their heads off…LOL. My advice would be… do what you think is best. Pay ESPC and cleanse your self of any guilty conscience that you were part of a theft or ignore…your choice. Btw, ESPC is the representative of literally all the ME companies so yes they are legitimate when it comes to sending them the software/designs etc that you purchased which were stolen. After all, if you buy a car and it is found to be stolen…the police simply takes it away from you…how is this any different.
You may be right in saying that the coalition has frightened the very customers in the industry but perhaps it is not fear itself but fear of purchasing stolen property that the customers have become aware of…don’t you think? Hugs, Sadia

bbradJune 20th, 2007 at 3:46 pm

My wife just received a letter from ESPC that must be a form letter according to the information on this site. In fact, my research brought me to this site.

The letter she received starts off with this sentence: “This letter informs you of your legal rights.” The letter does not inform her of her legal rights. That sentence is a troubling opening of a letter that is apparently designed to intimidate at best. Instead of informing my wife of her rights, it accuses her, by implicaton, of infringement violation(s) as a consequence of allegedly receiving a CD from another party who allegedly infringed on a copyright by inproperly copying protected material onto that CD. Lots of allegations, but no explanation of her legal rights. In fact, the author leaped directly into the most severe penalties contained in the code (17 USC) further inferring that her alleged violation was willful and knowing. The author proposed a settlement on his or her terms or they will sue her in some Federal District Court not identified. That author either knew or should know that these penalties do not apply for a simple purchase of a CD.

The author is likely aware per 17 USC 101, “that copying has occurred does not neceessarily mean that infringement has occurred. When copying is (1) authorized by the copyright owner, (2) exempt from liabiity by fair use, (#) otherwise exempt under the provisions of Sectons 108-119 or Chapter 10 fo the Copyright Act, or (4) OF SUCH A SMALL AMOUNT AS TO BE DEMINIMIS, THEN THERE IS NO INFRINGEMENT LIABILITY.”

Additonally, the “innocent infringer” provision of section 504(c)(2) has been the subject of extensive discussion. The excepton, which would alow reduction of minimum statutory dmages to $100.00 where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, –.”

So, the author did not advise the addressees of these letters of even a portion of their rights. As an attorney, I can say that a court might intrpret this letter to be misleading, intimidating, and possibly threatening. I find it troubling indeed if an attorney drafted this letter.

The method of resolution in this letter is to settle totally on ESPC terms or be sued in Federal District Court. Some other writers called this extortion. Extortion is a term which in comrhensive or general sense signifies any oppression under color of right. You decide.

This blog has helped me understand the charactor of ESPC. I shall endeavor to cooperate with them, but will only communicate in writing. Maintaining an accurate record is very important in any case where litigation is in anyway likely.

bbrad

Let us peruse what this author did not say.

SadiaJune 20th, 2007 at 4:09 pm

Hello Brad. The first sentence in the letter received pertaining to rights is exactly that. As a retired lawyer I read it as someone advising of the legal rights to the receiver. You did not write the whole letter but then as I have had the similar letter read by many friends and sent to me, I know what it is. It is irrelevant whether the tone of the letter as interpreted by you or others is rude, arrogant etc. It is relevant that the letter informs your wife of a wrongdoing done by her…never mind she was innocent. If you are a lawyer then do the best you can to deal with the issue. It is irrelevant what is the character of the organization, it is irrelevant what you think of the organization…what is relevant is that your wife whether knowingly or unknowingly committed infringement therefore you have to deal with it. If your wife did not know she was committing a crime then she can wait and see what will happen and then present her side in court. That is the best that I can say. Sadia

bbradJune 20th, 2007 at 7:34 pm

Thank you, Sadia. The purpose of my submission was to comment on the character of the letter, not preesent a defense. I did list several defenses that are available and there are more. She is accused of committing a tort, not a crime, and most torts do not require mens rea. My wife is crushed by the nature of this letter. She is a grandmother who only dabbles in embroidery to benefit her grandchildren. She woulld never do anything knowingly wrong. But this has set her condition back noticeably.

I will be willing to deal with ESPA in a most cooperative way to resolve this. But in all my years of dealing with hundreds of settlement, I never had one start with requiring admissions from either party. This one aparently does.

Information from a blog site, no offese intended to all the bloggers, is not the best. But I am trying to discover whether the people in this organization can be reasonable.

So far from what I have seen from some of their litigation, it does not look good. If anyone has first hand experience, I would appreciate hearing it.

By the way, we do not even know what CD these people are talking about. They need to be specific. That specificity may not be forthcoming if all my first attempt is going to achieve is an electronic message. I think I must respond in writing and try the telephone also.

If she did even purchase a CD, it was years ago and might be time barred for all we know.

Not if I am an attorney, Sadia, I am a retired federal attorney and former AUSA. I will get some assistance from someone in the area if these folks are not responsive. Representing my wife is like representing myself. Remaining objective is important.

bbrad

Response:

Brad, the best way to find out which CD is to contact ESPC. Apparently you have misunderstood the letter. It claims the wrongdoing on behalf of your wife…hence the letter. Copyright infringement is a violation of civil law with the remedy of either a lawsuit and or injunction. ESPC is following the law in this regard where they have notified your wife of her infringement. If your wife is innocent she has nothing to worry about rather wait and see what happens or she can contact ESPC and find out more. Different scenarios present different cases. If your wife purchased only once and can prove that she had no knowledge of it being a pirated copy then she can avoid the fines etc that might incur.
As for the method involved (which is what you are questioning) it is no different from the legal way of doing business in today’s world. Companies etc normally inform of a wrong doing in this manner especially when they have the proof. As for the limitation of time, I’m afraid that is a bit complicated….usually there is a time limitation of three years but only if it can be proved that your wife did not use the CD in the last three years. You see she is in possession of an illegal pirated copy therefore the infringement exists everytime she puts that CD in her CDRom. Hope this helps. Sadia

SadiaJune 21st, 2007 at 12:58 am

Brad, the best way to find out which CD is to contact ESPC. Apparently you have misunderstood the letter. It claims the wrongdoing on behalf of your wife…hence the letter. Copyright infringement is a violation of civil law with the remedy of either a lawsuit and or injunction. ESPC is following the law in this regard where they have notified your wife of her infringement. If your wife is innocent she has nothing to worry about rather wait and see what happens or she can contact ESPC and find out more. Different scenarios present different cases. If your wife purchased only once and can prove that she had no knowledge of it being a pirated copy then she can avoid the fines etc that might incur.
As for the method involved (which is what you are questioning) it is no different from the legal way of doing business in today’s world. Companies etc normally inform of a wrong doing in this manner especially when they have the proof. As for the limitation of time, I’m afraid that is a bit complicated….usually there is a time limitation of three years but only if it can be proved that your wife did not use the CD in the last three years. You see she is in possession of an illegal pirated copy therefore the infringement exists everytime she puts that CD in her CDRom. Hope this helps. Sadia

bbradJune 21st, 2007 at 10:56 am

Thank you again, Sadia. I know you are trying to assist. I do understand the letter and that it is a civil matter, thus a tort and not a crime. To be guilty of a crime there must be mens rea or intent. Without intent, there is no criminal act. Not so with a tort which is the issue here. Quite frankly, I would gladly give them the $300.00 to go away and never darken our door again. The demand for an admission of wrongdoing is what concerns me most. The nature of the settlement agreement will be critical here. Settlement agreements, by nature of its term, implies a meeting of the minds to terms to which all affected parties agree. If one side demands the agreement be couched only in terms devised by it and has the power to enforce it will over another reluctant party, there is no meeting of the minds and the settlement takes on another character. At worst, my wife is an innocent infringer and that should be acknowledged.

Now, the information I am seeking is whether any of your friends in the web have any information regarding the nature of negotiations pertaining to settling these issues with ESPC. Do they negotiate or dictate? I have read some strong opinions on this site, but are they based on reliable information? I can sympathize with the copyright holders who have legal rights pertaining their creations and have no sympathy for those who knowingly infringe on those rights. Can ESPC distinguish between the two and agree to settlement language that fits the facts? I shall certainly find out, but I would like to be as informed as possible before hand.

As to whether this is a standard business/legal practice, that may be questionable. I have been a chief counsel and would never permit a letter of this character to leave the office. Sooner or later it will come back to bite the hand of the author. To put this in perspective, assume a case exists like the scenario involving my wife went to some form of litigation. Picture a grandmother, who has led a distinguished life, is confined to a wheel chair, in constant pain is dragged into the unfamiliar and frightening environment of a courtroom, to face an accusation of wrongdoing about which she stumbled into innocently, and, finally, her fragile health and slow recovery have been detrimentally affected because of such a letter—with whom do you think a jury would sympathize? The author would have difficulty with an excuse that this is standard practice. In fact, such an excuse might cause them to enter the unenviable world as defendants in a civil suit. If they are in business, they either know or should know that this conduct could cause unintended, but actionable harm to harm to someone.

You and I could easily draft a letter that would put folks like my wife at ease, elicit their cooperation, and achieve ESPC stated goals with much less risk. In fact, it would become an educational tool that would put th public on their side and a whole lot more reporting of the egregious violations from a sympathetic public would result. Win their hearts and minds and cooperation of the type the need will follow. Other tactics cause hostility that you see on your site. It worked for me many times.

Just a thought to promote a more perfect world.

Still seeking information on settlements with ESPC.

BBRAD

bbradJune 21st, 2007 at 1:03 pm

Sadia,

At risk of overloading your site, let me add one more ccomment. I have visited the ESPC website and it is well devised and informative. Its information could have saved my wife and many others a great deal of trouble. Even the ESPC letter at issue does not mention this site. They should never miss an opportunity to get their point across. After the fact is never a good time to discover data that could have saved time consuming and expensive difficulties. Something like this could easily be incorporated in a settlement agreement to enhance awareness if the party is an innocent infringer. The innocent infringer is a victim also and is a victim of the actual infringer. The onus consequential to corrective action by the copyright holder or its agents shold be directed at the person or persons who willfully violated a copyright. That is not happening very well if at all.

The legal department at ESPC should work with its public relations department to work out a plan to be more effective as a team. Right now, deserved or not, ESPC’s reputation is not what they want it to be.

Bottom line. If in doubt, check it out. Use the ESPC website for information that is likely to assist.

bbrad

SadiaJune 21st, 2007 at 3:08 pm

Brad you are not overloading my website but thanks for the thought. Simple answer to your query is that ESPC and others have tried for years and please believe me I have the proof of how many letters, emails, phone calls etc were made not just to the sellers but also the buyers, to stop their illegal activity. The outcome was more sharing and specially more selling of designs of those and sharing of designs of those who chose to speak out, myself included. When all avenues of kind thoughtful attitude were closed….guess what worked and got immediate attention. Buyers are more cautious now and sellers are basically outsed altogether. Every now and then one or two start up but are shut down immediately. The cds that were being sold with thousands of designs belonged to mostly the commercial companies of whom ESPC is the rep. Now some of the cds had designs that were created by some who are in the field today causing all the uproar against ESPC as well as their computer info. Some of these sellers were not so savvy so ofcourse their method of causing hate, disbelief, commotion against ESPC was to divert the masses into believing that the organization is using scare tactics, it does not exist, it is a bully and the list goes on and on. There is quite a lenghty history of well over 10 years in this regard. If my stuff is being sold, shared do I just sit and do nothing…ofcourse I will contact the seller/sharer. Try and come to some understanding but when there is no understanding rather the seller/sharer mocks me further by posting more of my hard work…what am I to do? ESPC saw to it that the public was educated, people were told not to purchase, but it did not sit well and the sharing, selling continued. The legal dept and the PR dept have done the best they could. Rumours have been spread about by those who took part in this illegal activity to hide and cover up their actions and guess who is portrayed as the bad guy. There are always two sides to a story and unfortunately no one wanted to listen to the other side. What ESPC did is not illegal and no extortion or bullying tactics have been used. When thousands of phone calls and thousands of threats were descending upon ESPC and the companies they represent they dealt with the matters very professionaly and with decency unlike many who gleefully threaten and bully the organization by their remarks. I’m sorry for friends who got caught into this by the luring of their friends, acquaintances who are actually the guilty parties. But I do not make the laws, neither does ESPC. What ESPC has on their website has been there for the past seven years…the time frame that I have been in the field so it is nothing new. Even today, go to any Yahoo group or any embroidery group and any talk regarding copyright is immediately shunned, the person educating regards to it is shunned, banned and ridiculed. This blog’s purpose is not only to share my adventures in the embroidery world but also to educate many who do not realise what goes on. I appreciate your emails and appreciate your persistence, that is great. In end, although I would have asked you to email me privately and perhaps I can do something but I’m looking at a very strict timeframe when I will be travelling. However, I will be most happy to help personally upon my return in August. Meanwhile, all that I can advice is that it is your choice. Good luck. Take care, Sadia

DalisaOctober 18th, 2007 at 7:42 pm

Is there anyway I can get in touch with bbrad. I have received a letter from the ESPC and have been informed I have purchased pirated software from ebay. The CD in question never worked so I can’t even tell you what was on it. The letter I received was not certified and was almost thrown in the trash thinking it was solicitation. I am a stay at home mom who did not know anything about embroidery when I purchased the CD and still do not know much. I have been informed I must pay $500. I don’t have $500 lying around. So I would like to get in touch with bbrad and find out his outcome. Thanks for your help.

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