Sorry to hear this even more so since the person selling says she was an educator.Surely she knows.

The question of copyright infringement as it applies to the resale of a legally obtained copy of a copyrighted work is not as clear cut as Sadia states. The First Sale doctrine actually allows for the resale (or trade or loan) of a copy of a copyrighted item. “Licensing of designs” is wishful thinking on the part of digitizers. There is no basis in law to allow a license to remove a customer’s First Sale Doctrine rights. There is an exemption that applies to software for which the first and last 25 pages of source code has been registered with the government in a form that can be read without the use of any type of machine or equipment. To date, I am not aware that any digitizer has met this requirement. Case law to date does not support Sadia’s position. But, at the same time, there is concern about whether the First Sale doctrine should continue to apply. The software industry and the music industry have successfully found a way around the First Sale Doctrine but ONLY through the passage of legislation. Until digitizers lobby successfully for similar protection or until the federal courts rule that embroidery designs are exempt from the First Sale Doctrine, Sadia has overstepped her legal rights. This issue is not cut and dry. It is in the state of flux as technology changes, but, there is currently no case law that supports her position. There is recent case law that had a chance to support her position, but did not. It found that the owner of the embroidery design did not meet the source code requirement. To my knowledge, Sadia has not met that requirement either. In my professional opinion as a computer scientist, who is also a digitizer, I can see no way whatsoever that she or any other digitizer will be able to meet that requirement.
If Sadia is relying on some other legal basis, I really wish that she would specify what her legal basis is.

Denise thank you for your thought from a computer scientist’s perspective. I’m afraid the matter is not wholly and legally understood by you and others. If I sell my designs to ABC and after using ABC decides to sell, what has happened? Where did my rights go? Unfortunately people tend to misunderstand material items with machine embroidery designs. ME designs are either software or data….this has NOT been determined as yet as the case was thrown out (the one you are referring to). It is upto the legal professionals to battle this out in court. In the meantime, my copyright clearly states that the purchaser may not sell, trade, loan, share, distribute without my express permission. I think that is clear enough to understand where the purchaser stands. If and when this state of “not knowing” comes to stand that ME designs are nothing more than material goods then that will be the day you will see a big sign on my website stating that designs are for looking and not buying. LOL. Till that day my works are protected by the Copyright Laws of the USA and they clearly give me the right to have an agreement with the purchasers of my ME designs accordingly. Sidestepping that agreement is an infringement. ME designs are data made by me telling your ME machine what to do. The only ORIGINAL copy resides with me and licenses to use the designs are sold by me to others to stitch out the design.
On a personal note, Denise you are new in the ME world and I hope that with your understanding and knowledge of the computer world that perhaps you can help in spreading understanding for all. The Federal courts, the US Supreme Court, the US Copyright laws all give me the right to state my copyright on my works. Technology has changed dramatically and will continue to change. Why not to meet technology with the betterment for all rather than a few??? HUGS, Sadia

Perhaps this might be of interest as it seems many friends are looking at the “Mattson case” as being a law laid down in regards to First sale doctrine and ME designs:
http://www.techlawjournal.com/topstories/2006/20060830.asp
The said case was a definite blow to many ME digitizers but in reality, it was a point of technicality that blew the case apart….technicality being from the Copyright office and the registering parties in regards to the filing in category. That does NOT constitute law in regards to ME designs. It only showcases confusion in regards to determination of said ME designs to be software or data. Interesting the concept of IP never entered into the discussion. Hope this helps. Hugs, Sadia

Sadia,
I do agree that you have rights granted to you under copyright law. That is not a question for me at all. In your response to me, you said that “the matter is not wholly or legally understood” by me. I have not suggested that I totally understand the issue. But, I also must suggest that you do not fully understand the rights of the purchaser of your copyrighted work. As the law currently exists, once someone has legally obtained a copy of your copyrighted work, the First Sale doctrine applies. This doctrine defines the rights of the purchaser of your copyrighted work. As the law currently stands, the purchaser has the right to sell, trade, dispose of, etc. the work that they purchased from you. This law is intended to prevent the copyright owner from controlling the copy of their work which they have sold to the purchaser. In recent years, copyright owners have attempted to use licensing agreements to limit the legal rights of the purchaser. When this licensing agreement is not a negotiated contract (that is, both sides have not had input and come to an agreement), there is concern that the licensing agreement may not be legally enforceable because it limits the rights of the purchaser under the First Sale Doctrine. In fact, you could be violating the rights of the purchaser by attempting to limit their First Sale doctrine rights through use of the licensing agreement. This specific issue has been dealt with by the computer software industry and by the music industry. Laws were passed that restricted how the First Sale doctrine applies to software and to music. Laws need to be passed to clearly define how the First Sale Doctrine applies to other copyrighted work in a digital format. This issue has as yet to be resolved by our judicial system. Until it is resolved, I do not blame you for including a licensing agreement with your designs. I understand your attempt to protect your work. I only question whether the law would allow you to enforce that agreement. Perhaps, in the near future, our legislative and/or judical system will decide if your attempt to license your work is legal.
It is also worth pointing out that throughout the history of our country, there have been many issues where the law has needed to be reviewed and, in some cases, changed. We are lucky to live in a country where laws can change to address innovations in our world. While I have to admit that the First Sale Doctrine may need to be updated, I am reluctant to support any restrictions on the rights that are currently defined until the law is changed or reinterpreted by the courts. I believe that we must work to balance the rights of the copyright holder with the rights of the purchaser. That is the reason that this issue has not yet been resolved. It is not an easy task to get the scale to balance so that all of us are protected. It is only through protecting the rights of the copyright holder without unduly infringing on the rights of the purchaser that we will find a solution that is to “the benefit of all rather than a few.” Until then, I have to believe that the majority of people in the machine embroidery community will do what they believe is right and fair, although, I admit that there may be a few who will not. I must believe in the inherent good in this community. Hugs, dina

Denise, the First Sale doctrine applies to literally everything and anything that can be sold. However, in regards to electronic softwares, and or ME designs, there is a small matter of Copyright acceptance that completely throws out the First sale doctrine. In legal terms it is regarded as the “clickwrap”. What this means is that the purchaser has to accept the understanding of the seller’s terms prior to accepting the goods. The terms of the seller then become binding regardless of the First sale doctrine. This is a legally binding and existing practice. Again, the rumours abound in plenty and the general ME public is not aware of all the ins and outs and my only goal here is to protect all and to make everyone understand. The law does protect every ME digitizer under the clickwrap term. Anyone purchasing from me must first click on the order page the terms before their order can be placed. Regardless whether one paid attention or not to the terms, my copyright terms then become final and thus “no sale, no lending, no trading, no distributing, no sharing”.
However, since you are adamant that the First sale doctrine is indeed binding upon ME designs, I hope you understand that if indeed that is the case, I and the hundreds of ME digitizers can now protect their works further. In my case, I can now quote my prices 10 times of what they are at the moment. This is just a scenario. But as we are all protected by the law that is not going to happen. LOL.Hugs, Sadia

What an interesting and enlightening conversation! I hope that others like me will benefit from it. I of course knew that sharing designs was illegal, but never thought about the fact that reselling them unopened was also illegal. I don’t disagree with it, and I’m certainly glad my ignorance never got put to the test! Due to my lack of record keeping, I once bought several design collections twice. I was lucky enough to have a happy ending, because the digitizer agreed to exchange them for some I didn’t have.

I do have a question, though. If someone says they’re an authorized distributor of design collections, and they’re selling on e-bay, is it permissible to purchase from them? Or is that whole scenario an oxymoron? Do digitizers permit their desings to be sold that way? So many things to learn … I’m glad this discussion was here to educate me! The more we know, the less likely we’ll be to make an unwitting mistake. Of course, that doesn’t take care of those who knowingly flaunt the rules….. Just some thoughts from someone who still has a lot to learn. Thanks for the explanations. Sue

Sue, first of all, reselling an unopened cd/disk of designs is not wrong, nor illegal. The referenced Ebay auction was of a set of designs which were opened and used once by the seller. It is irrelevant that the designs were stitched out once. The fact that the lady opened the cd means she agreed to the terms, and the terms are that she owns the designs for life, she has no right to resell those designs without my permission. I am the only person with that right, unless I have specifically given that right to someone else.
A lot of people try to resell stuff on ebay and there isn’t anything wrong with that. As long as they are selling their own stuff. I used to sell on ebay a lot myself. Easiest rule of law as far as machine embroidery designs is that they are purchased once and unless permission is given, they cannot be sold by the consumer. They are differnt than a book or a cd of songs, movies etc as the designs are not the end result rather a means to an end. My only advice on ebay would be to double check the feedback of the seller, and email the seller to find out if the designs belong to the seller or someone else. Buyer has to use some caution. Hugs, Sadia