Sadia,
Let me propose two other scenerios.

Scenerio 7. Samantha purchases some machine embroidery designs on a CD. The CD was not shrink wrapped when she bought it. She never used any of the designs on the CD. Because she never put the CD into her computer, she had no opportunity to agree to any click-through licensing and never made any copies of any of the designs on the CD. Some years later, she happens upon the CD and, realizing that she will never use the designs, she decides to sell the CD.

I contend that she is entitled to sell the CD under the First Sale Doctrine.

Scenerio 8:
Samantha purchases a CD of machine embroidery designs. The CD is not shrink-wrapped, so we cannot assume that she agreed to any licensing proposed by the seller since she did not have any shrink wrap to open. She puts the CD in her computer and copies one design to her flash drive. Since she only copies the file, there is no click-through which prompts her to agree to any licensing agreement before she copies the file. She stitches out the design and then removes the copy from her flash drive. She decides that she no longer needs any of the designs and sells the CD at a yard sale. She does not keep any copy of the machine embroidery designs.

I contend that she is entitled to sell the CD under the First Sale doctrine.

Sadia, I would like to know if you can clarify how the First Sale Doctrine applies in these scenerios.

dina

Denise, in any scenario, if the purchaser had to agree to a shrink wrap and or click wrap agreement prior to the purchase then despite the absence of any shrinkwrap in both scenarios presented above by you the First sale doctrine does not exist.
In both scenarios (aha and I bet you are thinking of the scenario where you received gift CDS from me at an embroidery conference, LOL) and any other scenario where there is NO shrink wrap and or click wrap presence, then she is bound by the US copyright and IP laws. First sale doctrine is a good try here but I’m afraid there are other laws that prohibit sale of open merchandise especially digital files merchandise. I would strongly suggest at that point that laws best be understood or else the seller may be instigating an infringement lawsuit. Law is a blind lady, not listening to any one side but weighing the facts and the precedents. Copyright infringement is not black and white, there are grey areas. My friend, Copyright laws and Intellectual property laws are based upon RESPECT. It is not just a legal obligation but a moral right to respect and abide by the details set forth by the seller and the owner of the Intellectual property.
Hugs, Sadia

Sadia,
I am not thinking of any personal scenerio. The scenerios that I suggested were PURELY HYPOTHETICAL. I am only asking for your opinion of scenerios where there is no shrinkwrap or clickwrap. I, and many of my friends, have purchased CDs containing designs at various conferences and shows. I do not recall EVER receiving one that was shrinkwrapped. I never recall signing a licensing agreement or being given one to read before purchase. And, since I received a CD, there was no click-through lcensing either. Essentially, there was no notification to the purchaser that required an affirmative action agreeing to any licensing agreement of any kind prior to purchase and/or use. Note: a text file on a CD is not enough since a purchaser may never open the file.
My question was posed to suggest that digitizers who want to depend on shrinkwrap or click-through licensing need to be sure that they use shrinkwrap and not simply think that the use of shrinkwrap by the software industry somehow means that embroidery designs are protected when they are neither shrinkwrapped or protected with a click-through agreement when purchased on CD.
I have never purchased any designs from your website, but I do own quite a few of your designs on CD. I posed these scenerios to point out a potential issue that you, as a digitizer, may want to consider.
I would love to hear about the other laws that “prohibit sale of open merchandise especially digital files merchandise”. There are licensing agreements that restrict the distribution of databases. But, since the agreements that I am aware of were included in a shrinkwrapped package, they don’t apply in these scenerios either. Please be more specific about the law that you are referencing and I will research those laws. Also, copyright laws are not based on respect. They are based on the law, judicial interpretation, legislative history, and legal precedent. A person’s behavior may be based on respect or could be based on lack of respect.
Contracts are based on a mutual understanding and mutual agreement best reduced to writing. That does not mean that most customers will not respect your wishes, but at the same time, it does not mean that they have a legal or contractual obligation to do so.
My suggestion is that there are actions that you can take to better protect your designs. Shrinkwrapped CDs with a printed licensing agreement would be a good start. Click-through licensing when designs are purchased on-line (if you do not already have this in place.)
If you have mistakenly thought that I have plans to resell your designs, you need not worry for I currently have no such plans. That is not the reason that I raised these issues. I raised them to point out things that you and other digitizers might do to better protect yourselves.

Best wishes
dina

Denise, morality laws are the oldest form of laws and unfortunately in our present lifestyle and world we have forgotten what truly existed. We are quick to point out mistakes but not quick to understand. Morality and Intellectual property go hand in hand. One cannot accept the rights of an IP holder without any sense of respect. It really boils down to moral values. I know that the CD of ME designs I purchased cannot be sold as there is a sticker on it that clearly tells me I cannot do such. I take the sticker off and sell it nevertheless. It is a one time deal and no one knows. Where did respect go in this case.
Ignorance of the law is no excuse. When you purchase any software there is a long tirade of documentation included in the cd. Do you read it all? Perhaps and perhaps not. Just because you did not read it all does not mean that your non-reading made you innocent of violating the copyright of the software maker.
I’m afraid you are mistaken about there being a personal issue here. As all my cds are labeled, and the purchaser’s name is associated with the cd, resale of that cd and then perhaps sharing of files of that cd would only bring me to the original purchaser. A simple email to me asking permission to sell the cd would suffice and let me know who the new owner is.
It is regardless that you did not have to click on anything before purchasing the CD or upon opening the CD. If the cd has a documentation in it which clearly specifies the use of the designs, legally you are bound by that writing regardless whether you read it or not. I’m not making laws as I go along as many of the personal emails state, I’m presenting them as best as I understand them by extensive reading on the Internet.
In case of ME, a contract is when a purchaser buys the ME designs from the seller. If you want to go into details of contractual laws, then I would suggest try googling the words and you will find in every circumstance that a contract occurs when the buyer buys. If the buyer was ignorant of the usage of designs, that is NOT upon the seller to explain as most all the ME designs come with a text file and it is the DUTY and RESPONSIBILITY of the purchaser to be aware. Legally, the purchaser is bound the moment the CD is in their possession after purchase, whether the purchaser abides by the documentation regarding the usage of the contents, that is a personal thing, abide or not…it is a choice. Hugs, Sadia

When you purchase digital media you are purchasing the right to use the files and own the disk or card that the designs are placed on. First sale doctraine you can sell that disk. I am talking about memory cards like that are sold by the big licence companies. All your senerios have holes in them. You put things that are not linked. If I purchase a movie on DVD say at WalMart after viewing it I can resell it. Just like Music that I purchased on CD from Target. As long as I dont keep a copy of that data on my computer then I am in the right. Same with the Design CDs and Memory cards. ON all the Cds and Cards that I have purchased there was nothing on the shrink wrap. It was clear. Candy bars at least have a pull tab.

What is moral law and actual law the only thing that matters in a court of law is Actual Law. Because if Moral law was applied in court Lawyers would not be allowed.

P.Diddy, you’ve said it yourself, purchase is of the files and the medium only. Sure according to the first sale doctrine you can sell the medium but can you sell the designs? I am looking at an embroidery card which itself does not say anything. However, its box clearly says that I cannot sell it, what do I do? Furthermore, inside the box, I find a paper with copyright details which clearly tells me I cannot sell, what should I do? I recently purchased some designs online. The text file that came with the designs clearly tells me I cannot resell the designs, what should I do? I could contact the designer if and when I no longer have any need of the designs provided I do not keep a copy. How will the designer know that I did exactly that and I can keep a copy for myself as it is a digital medium. My friend, both sides must be looked at before we can arrive at a conclusion. Laws of morality dictate exactly that and all our laws are based upon it. Hence, my thoughts here. Hugs, Sadia

See you read what you want and twist the words. When you purchase the digital media you are purchaseing the media that the designs are on. Disk card ect. you are not talking about puchaseing the files. The files are on the disk. You can use them but a person does not own them. If you dont own them you cant sell them. That is why you can not resell designs that you download. (by the way I didnt bring that up in the first post)

YOu can sell the media. I have 3 cards and 2 disk packages in front of me. It says on one that I can not sell the designs. THE DESIGNS OR SHARE THE DESIGNS. I am not takeing the designs off but reselling them in the fashion that I purchased them. THe cards are licensed designs Dennis the menace to name one. It says that I can not sell articles with the designs stitched on them. Okay so I wont. BUt I can re sell the card when I am through with it. as long as I list it as used. That is what Used cars are, used videos, and movies. Heck you can rent movies.

Machine embroidery dealers will take in Used cards and CDs with thier trade in towards a new machine and resell the cards and CDs as used Why? because It is allowed by law. They are not takeing the designs off and selling them on a home CD to thier customers.

Then you want to say that law is based on morality. WRONG. Ever heard of double jeopardy. Man gets tried for a murder 12 people cant make a decision. SO he gets a walk. Then 2 years later they find compelling evidence that would convict. Morally he should be convicted but a LAW says we cant. Morality and the law is an oxymoron like most lawyers. What does a defense lawyer first tell his client. Dont tell me you did or didnt do it. Then I cant put you on the stand. I dont care. I will just get you off.

PS this says it best when it comes to copyright

Embroidery Cards and CD-ROMs contain both licensed and Original designs, with each type of design having different restrictions on use.

Licensed and Original Design Collections
LICENSED design collections: Embroidery cards and CD-ROMs with copyright belonging to third-party designers and NOT to . Licensed designs are identifiable by the copyright symbol © and the copyright holder’s name (e.g. “© CLS ”) printed on the packaging.
ORIGINAL design collections: Embroidery cards and CD-ROMs with copyright belonging to and identifiable by the words printed on the packaging.

Your Rights as a Purchaser
Your purchase of a LICENSED embroidery card or CD-ROM entitles you to the following privileges:
You can sew out the designs for your personal, non-commercial use (designs cannot be sewn on items to be sold, be it for profit or non-profit)
Your purchase of a ORIGINAL embroidery card or CD-ROM entitles you to the following additional privileges to the above:
You can sew out the designs on items to be sold ( makes no representations or warranties, expressed or implied, for the embroidered items)
You can change the size and/or color of the design

Restrictions on Use of Embroidery Data Itself
Any of the following actions violate copyright laws and will prosecute offenders to the fullest extent of the law:
Selling, trading, sharing, renting, transferring, or otherwise distributing the original or modified versions of the design data itself
Sewing out LICENSED designs on items to be sold
Uploading, downloading, e-mailing or transferring electronic files of LICENSED or ORIGINAL designs on the Internet, through a computer network, or by a direct connection etc.

Thank you P.Diddy. However, this surprises me:
“Machine embroidery dealers will take in Used cards and CDs with thier trade in towards a new machine and resell the cards and CDs as used Why? because It is allowed by law. They are not takeing the designs off and selling them on a home CD to thier customers.”
I do not know of any ME dealer that will take in used cards and or CDs. Sure you can sell the card or cd but without the designs on them. Hugs, Sadia

So your are saying I can sell the music CD without the music on it or the Movie CD without the movie on it. YOu are wrong. Learn humility when you are wrong about Things. Machine dealers do take in Cards and resell them just like they take in machines and resell them. With your argument it would be that a person could purchase a Brother embroidery machine with built in Disney designs and could not sell them. Wrong you can re sell it. you can trade it in for bigger and better if you want. It is called First Sale Doctraine. you need to learn it and apply it properly.

First of all, music cds and or movies are not being discussed at least not by me. I was under the assumption we were discussing ME cards and cds. But since you brought it up….you can sell the music cd and the movie video with or without the contents as long as you do not have a copy….did I hear an echo? LOL!
As far as designs on a machine are concerned, they are not a separate entity, they are part and parcel of the whole, the machine. When you sell the machine, the built in designs go with the sale.
I am not aware of a First Sale Doctraine, is that something new? HUGS, Sadia

Oh Sadia do you not read what you write. I guess so. Jeeze you brought it up first in your little scenarios about JR. AND you have just proved my point. If the designs on a machine are part of the whole parcel then the designs on a CD or card is a whole parcel. Same thing. The memory on the machine is the same as the memory on a CD or Card. Thank you for proving my point.

The topic is First sale doctrine and ME (machine embroidery) designs. The scenarios are mixed but the topic is definitely ME. If intelligence demands that an embroidery machine and its contents are one thus a CD/card should also be the same. I see your point but do not see where the logic applies correctly. The ME designs on an embroidery machine are licensed purchases from the original IP holders. At no point can the machine and the designs be separated, they are sold as one. In case of a CD/card the designs can be sold without the need of a cd/card and are not dependant upon such medium. Hope this helps. Hugs, Sadia

It is your logic that is flawed. You mixed the topics with your scenarios when you started the topic.

The machine and the designs can be seperated. You can use a memory card, compact flash, CD, Floppy, USB cable and Stitchlink to remove the designs from the machine and take them to the computer to manipulate to your hearts content. You say that the machine and the designs are sold from the original IP holder. Since when did Brother create Snoopy, Mickey, And Pooh? I do not see where your logic applies you are wrong again.

You started the thread with an ebay sale of a sweater, then you progressed to DVD movies, then to ME.

Here is a scenario

Sally purchases a ME card from her brother dealer. She uses the designs. THe card is locked by brother and her machine she can not resize or change the designs. She can not take them to her computer. SHe uses three of the designs. Now she is done with the card. She does not have use for it. Her grandbaby is out of pooh and does not want grammy to embroider that bear on her clothing any more.
Grammy/Sally can re sell that card on Ebay as used and she is in the right. She has not kept any of the designs on her computer or machine. She has not sold any craft items with any of the designs from the card. She has not violated any laws. She is not violating any copyright laws. Fact.

Thank you for your comment. Actually Brother does hold the copyright as they have purchased the license to it and that gives them full power to sell the designs. It is further digitizers that are hired by the company that digitize the designs therefore the copyright of the designs does belong to the company. It is the artwork that belongs to Disney.
As far as Sally is concerned, she cannot at any time sell the card as the card comes with a stipulation that it cannot be sold as well as any items with the embroidery from the card cannot be sold. Hugs, Sadia

There you go again Sadia. You twist the truth to fit your point. But alas you are wrong again. Brother purchased a license to sell the designs. It is in the contract with Disney. Disney is the IP holder on the ME designs and costume designs by Simplicity. They hire the Digitizers/designers to make what they want. They have the final approval and then Brother can put it out there for the masses.

Sally can sell the card. She does not have a copy. First sale says she can just like a book, CD, DVD, ME card, car and even a house. All have IP attached and when they are used you can re sell it to get rid of it.

Also some friends and I are working and trashing that rule that we can not stitch licensed designs on things to sell. We are using the rulings that apply to licensed fabric.

Wont that be a hoot!

Brother has the contract with Disney to digitize the Disney character designs. Disney owns the copyright only to the artwork. The digitized designs are licensed by Brother to digitize and sell after I’m sure a hefty sum was paid to Disney to do such. Disney is the Intellectual property owner of the artwork and not the machine embroidery designs as the machine embroidery artwork was license purchased. There is a difference. I digitize for commercial companies and I do not have the right to sell the designs, only the company does. Final approval from Disney is only for the purposes of matching the artwork and nothing else. Disney is not producing machine embroidery designs rather they are licensed out to be digitized.
Sally can only sell the card if she had permission from the actual IP holder which is Brother and btw, most of the Disney cards are clearly marked that neither they nor the stitchouts can be sold.
First sale doctrine does not apply to machine embroidery designs until the permission is granted from the actual copyright holder. True you can resell movies etc. but they are not the type of data that machine embroidery designs are. Please do let me know where you derive this information.
Good luck to you on your endeavours. Btw, don’t you have a court date coming up soon??? Hugs, Sadia

NO I dont have a court date comming up soon. You must have me confused with someone else. But confusion is something you are used to.We are still writting the briefs to file against a certain ME company to stitch licensed designs on things to sell. I think it is there turn to be on the defense.

You are wrong again. A person that I am close with Digitizes the Disney designs. Her contract is with Disney not Brother. When she is done with the designs they get shipped to Disney Dept. in LA California by an Armored service vehical. She does not own the designs and is paid nicely but also recieves a royalty for each card that is sold

Do you think Ford gave permission the first time a car was resold, or the Levi gave permission the first jeans to be resold. Laws are changing and there is nothing on the law books saying that a ME card or disk can not be resold. In fact the courts have ruled that me is not software but a product of.

If you are digitizing for a BIG commercial company that could explain why the quality at some companies have have gone down. Would you care to share who you digitize for so we will know what companies to avoid.

Uh, you must be watching a lot of those suspense movies. LOL, did you know that Disney does not SELL ME designs? Armored truck?? LOL…thank you for providing the humour it is much appreciated. Sorry for never being able to be in the right but then it is not important that one is right or wrong but rather that one has decency to accept another’s view. I did notice your MO is now changed on the newsgroups and no I do not have you mistaken for anyone else….remember I can tell where you are sending email from, LOL. Good luck. Hugs, Sadia

Sadia. you do not know me. You do not know my name. I have met you at a show and your ignorance at what you were telling newbies at a show was what turned me off to you. You do not read a thing do you. You skip around and make your own words.

The vehicle that picks up her parcel that she ships to Disney is an armored vehicle that is used to pick up book keeping records and delivers like DHL or FedEx. Disney does not sell the ME they sell a license to Brother. They approve each design before Brother has them to sell.

It must be rosy living in that state you live it. What is it called the state of Illusion.

I could accept your position if you had law to back it up. You don’t. There is no precidence in your favor but in the favor of the consumer.

You use scare tactics to frighten people. You dont frighten me. You started a blog to attack people and more.

Here Sadia. If you know me. Send me an email. I will be waiting.

Your examples sort of confused me. Can music and movies be the same as machine embrodiry designs?

Sorry Laurie, I did not see your comment. Please excuse. To answer, NO. Movies and music is NOT the same as Machine Embroidery designs. Actually they are absolutely different despite many individuals who promote the thought that they are alike. A movie or a music tape is a finished/end product. One cannot do anything more to it, it is done. A machine embroidery design is the means to a finished product. Purchase of an ME design requires much more than just a machine, it requires fabric, thread, needles, etc. Then, it requires the imagination of the purchaser to use the ME design to a finished product. That is where the confusion in IP rights vs First sale doctrine comes in. When you purchase a machine embroidery design, you are only purchasing the rights to stitch it out. The actual copyright remains with me as I’m the creator of it. I have given the purchaser the license to stitch it to create the end product. I receive no $$ from the sales of the finished products but only the sale of the design itself. Since I’m the original IP holder of the design, I and I alone can sell it. Anyone else selling it without my permission is actually infringing upon my copyright which is protected under the laws of the USA. Hope this helps. Hugs, Sadia

First Sale Doctrine’s application to machine embroidery designs was set as a precedent by Action Tapes vs Mattson, do you agree.

P.Diddy, actually you have never met me at a show as you have never been to a show where I was teaching. Besides, I teach hands on classes, where there is no lecture so your statement that “what I was telling newbies” is a bit stretching it.
As far as the law goes, I have full support of it. Any design I create is my Intellectual property. The US copyright laws admit it and give me the full power to enforce my copyright. There need not be a precedence set in anything for it to be a law. Just because an event did not ever occur and set a precedence does not mean that there is no LAW for it.
Good luck in YOUR ROSY state, LOL. Personal attacks and jabs only portray the true personality of the person that you are. I pity you and hope that the upcoming cases against you will further showcase your true nature. Take care, Hugs, Sadia

Devil’s Advocate, thank you for your comment. However, one must understand law in order to fully understand what happened in AT vs Mattson. In the process of verifying the copyright registration it was determined that the registration was filed in the wrong category thus the case never went any further to establish anything other than the fact that ME designs are not to be considered as software. One must first lay down the basics when arguing a case. It is a pity that the legal reps of AT did not realise the importance of correct filing. Mere registration and receipt of a registration certificate is not enough, there must be proof to back up the registration as well. The case is excellent as it opened the door for many who do register their ME designs and perhaps they will know better to not register as software. Copyright infringement discussion can only proceed when the basics of the case are settled: registration of the IP. As the registration was incorrect, the case was thrown out on technical grounds. There is NO precedent set by the case in regards to First sale doctrine applying to ME designs.
Moreover, a precedent need not be present in law to be law, LOL. Sort of a tongue twister there, no.Hope this helps. Hugs, Sadia

Further response to P. Diddy:
I was rereading your post:
“Restrictions on Use of Embroidery Data Itself
Any of the following actions violate copyright laws and will prosecute offenders to the fullest extent of the law:
Selling, trading, sharing, renting, transferring, or otherwise distributing the original or modified versions of the design data itself
Sewing out LICENSED designs on items to be sold
Uploading, downloading, e-mailing or transferring electronic files of LICENSED or ORIGINAL designs on the Internet, through a computer network, or by a direct connection etc. ”
If this is not clear enough then why are you questioning resale of ME designs.