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Not in harmony

Wednesday, June 2nd, 2010

Blog still a shambles? Yes. (Conversion tool… oh, right, I meant to put that up.) Knitting not progressed? Not very much at all. A new story? Perhaps.

Do you know those multicoloured knitting needles–those ones made from a laminate composed of different coloured layers?

Who makes them?

… okay, then. Who made them first?

The fact that KnitPick’s popular Harmony needles, cut on an angle from a multicoloured composite laminate, were preceded by Grafton Fibers’s Darn Pretty Needles is not a new discovery. Grafton (now Dyakcraft) had been selling their needles for a while before they were “harlotted” in mid-2007. Dyakcraft had already been in the business of selling small weaving looms, which they called Harmony Looms, for a few years as well.

Of course, given the popularity of KnitPicks, thanks to their competitively-priced yarn, there are probably a lot of knitters out there who believe that Dyakcraft copied KnitPicks unless they have the opportunity to be put right by others who frequented carefully-curated yarn shops or shopped with artisans rather than mass-producers prior to the introduction of Harmony needles. This sort of mistake on the part of the consumer is not unusual when a smaller producer is outsold by a larger company.

The appearance of the Harmony needles must be of significant importance to Crafts Americana, the KnitPicks parent company. Indeed, last year they filed a U.S. trademark application for the appearance, or trade dress, of their multicoloured laminate needles. They also filed a trademark application (since registered) for HARMONY for use in association with knitting needles…

You know where this is going, don’t you? If you do, your prior education regarding STITCH ‘N’ BITCH has served you well.
(more…)

Posted in legal briefs | 22 Comments »

Read the fine print.

Thursday, April 16th, 2009

Here’s another thing.

Since it was launched, people have been touting Creative Commons as a great idea. And it is, frankly. There are a lot of creators out there who do want to share their work in a spirit that focuses on attribution and perpetuating the work (because the more a work is distributed the more it will live on, one way or another). And — well, I don’t need to promote CC or point out how it’s been used by various publishers and self-publishers.

But just one thing: please, before you decide to use a CC licence for your work, make sure it means what you think it means.

Publishers may choose the non-commercial use version of the CC licence, thinking that by doing so they have prevented anybody from profiting in any way from the use of their work. When you read the bright, clear language on the allegedly “human-readable summary” page for the attribution-noncommercial-noderivs (unported) CC licence, you see this:

Noncommercial. You may not use this work for commercial purposes.

That’s great. However, you might not realize that this does not guarantee that the CC licence prohibits any commercial use.

Why? Because the CC licence makes a point of stating that, notwithstanding the rest of its provisions, there is no derogation from the user’s fair dealing or fair use rights. If you read a little further down on the human-readable summary page, you’ll also see this:

Your fair dealing and other rights are in no way affected by the above.

(If you’re reading a US-ported version, it will say “fair use”.)

And if you click through to read the actual licence text (which, by the way, was written by a human, too), you’ll see (unported version again):

Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

The fact is that while much of fair dealing or fair use is non-commercial in nature, some uses of copyrighted works may be fair and have a commercial aspect at the same time. If I do research in order to provide a service to clients who pay me for my work, depending on my activity I may be dealing fairly with the research materials I use, but there is still a commercial aspect to my use.

Let’s take the example of the previous post: the situation where the publisher doesn’t want somebody making money by teaching classes from patterns that are distributed free of charge, even if the teacher directs the students to get their own copies. Clearly, there is some kind of commercial use going on; the teacher (who probably has her own copy) is reading the pattern, and helping her students knit the pattern from their own copies — for a fee. The exam question: would a CC non-commercial licence suit the publisher’s requirements, and why or why not? Would your answer change if the teacher did hand out copies of the pattern, otherwise in accordance with the attribution and non-derivation requirements? Would your answer change again if it was not a teacher, but a retailer who displayed a knit sample next to a pile of yarn for sale, and handed out cards with the pattern’s URL (not the pattern)?

The bottom line is this: if you are uncertain whether a commercial use falls within fair use or fair dealing, and you are interested in prohibiting that kind of use, seriously consider whether a CC licence is your best option. You might need to impose some other kind of licence agreement to protect your work the way you want.

Posted in Blogroll, unfinished thoughts | 2 Comments »

Riddle me this…

Thursday, April 16th, 2009

How do (hand knitting/crocheting) designers view fair use or fair dealing? A good thing, right?

I assume that, for many designs, we can all agree that some of the elements incorporated into a design or a pattern did not originate from the designer, to the extent that the designer cannot really complain if someone else in turn takes that same element and incorporates it into their own design or pattern: a traditional motif, a stitch pattern from a dictionary.

And it could be that it is that element that really “makes” the design. Sometimes the designer has applied her own interpretation to the element, somehow adapted it to make it work in the shape of the garment or accessory in a way that may not have been done before. Yet, the element itself is not new, and we do not question the designer’s right to take that known element, and incorporate it into something from which she can derive profit.

Why, then, is there such objection to having shops teach from those patterns, for pay, without further permission, provided the teacher who teaches from the pattern does not violate copyright in the pattern (for example by running off unauthorized copies (e.g., paying for one and making copies for distribution from that one) or removing the original authorship/copyright ownership information)? Even in the context of patterns distributed by the publisher without charge, if each student is directed to obtain her own copy personally? And provided there is no implication that there was any connection between the shop and the designer, beyond the fact that it was her pattern being used in the class?

This is not so much about the legal underpinnings, as it is me trying to understand why that next step is so problematic for some designers.

Or maybe I do understand, and I don’t realize it. I remember when I finished writing Rogue: I was so proud of it; I had never seen anything like it. And it was time to price the pattern. I knew what kinds of prices had been charged for PDF patterns at the time (Bonne Marie Burns was my benchmark), but I remember thinking to myself that there was no way I could let it go for more than $10/copy. I talked myself down from that price, obviously, but I remember that it was a bit of a wrench to accept that what I thought I deserved was likely not realistic. It’s hard to be objective about your own work.

And initially, I did not like the concept of people knitting FOs for sale from my patterns any more than others seem to do. But then I realized that the likelihood of anyone earning a living from knitting up my patterns alone was pretty slim. The designs that I care most about are not ones that can be easily replicated by machine; there would still need to be a substantial amount of handwork, even if the construction of the piece were somehow changed to maximize the amount of machine knitting. (I do care that knitters are not exploited, which is why my licence specifies that the seller must be the one who knit the item, along the lines of a typical angel policy.)

It also struck me that there was some kind of incongruity: if I was willing to say that hand knit items were undervalued and if I deplored the fact that people had been taught to value the cheaply mass-produced over the artisanally-crafted works, why did I want to deprive the skilled knitter from realizing revenue from knitting my designs, if my designs could help the knitter realize a higher price for her skills?

Posted in Blogroll, unfinished thoughts | 20 Comments »

Answers (the procedural kind)

Thursday, January 15th, 2009

Answers to the complaints were filed in both the Bliss and Noro actions by the U.S. defendants (Bliss Answer, Noro Answer). The answers simply deny (mostly) the allegations in the complaints, admitting some non-contentious issues, and denying any knowledge of others.

There is not a lot to read between the lines here; however, one thing caught my eye. The answering defendants admitted, for example, that TKW “purchased hand knitting yarn from KFI spun with 12% cashmere”. Yarn that was spun with, not yarn “containing” or “comprising” (Noro Answer, paragraph 51). This is consistent with the rest of the answer, which does refer to the various tests of fiber composition that were made on the their behalf (or on behalf of someone in the supply chain) and says that the documents speak for themselves.

Some affirmative defences are also set out, including the assertion that the plaintiff had voluntarily assumed a known risk (presumably the risk that the goods were not what they purported to be?) and unclean hands (an equitable defence; where a plantiff seeks equitable relief from a court, the plaintiff itself should not have behaved inequitably itself in relation to the matter in dispute).

I’m not clear what the plaintiff’s inequitable conduct might have been, unless it was the subject of the counterclaims made by KFI: the plaintiff has “engaged in a course of conduct that, upon information and belief, is designed to impugn the reputation of KFI and disparage the quality of its yarn products” — pointing out in particular the yarn recall notice that TKW sent to its customers, and a May 2007 article that was published in The Chestnut Hill Local about the cashmere issue (if you do a Google search for relevant terms, you should be able to find the article). It is alleged that KFI experienced a loss of customers and sales as a result of TKW’s statements. So, KFI is claiming statutory defamation, disparagement, and tortious interference with both existing and prospective business relations.

Posted in Blogroll, legal briefs, themes | 2 Comments »

Moving forward…

Tuesday, December 23rd, 2008

A bit.

When we last left the cashmere conundrum, we were waiting for developments on the motions brought by certain defendants (the US-based ones) in both the Bliss and Noro actions. And now, we have them.

If you recall (what, you don’t?), certain defendants had moved to have the parts of the complaints that were based on federal law dismissed, so that all that remained were the counts based on state law. If the counts based on federal law were dismissed, the defendants argued, then the rest of the action ought to be dismissed from U.S. District Court as well because the proper venue would have been state court.

The defendants had mixed success. Last week, the court issued orders for both lawsuits (Bliss PDF, Noro PDF). In the Bliss action, the count based on the Lanham Act (false advertising under federal law) was dismissed, but the count based on RICO was not (although the grounds for the RICO claim were cut down).

In the Noro action, the Lanham Act count was dismissed, which left only allegations based on state law. However, the court retained jurisdiction over the action because of the diversity of citizenship (there are companies based in Japan, Pennsylvania, and New York, and individuals from New York and New Jersey).

If you need a scorecard, this is what remains in each lawsuit…

In the Bliss action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Filatura Pettinata, Sion Elalouf and Jay Opperman)

~~III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act~~
~~(against Knitting Fever)~~

IV. (federal law) Injury to Business and Property Pursuant to Racketeer Influenced and Corrupt Organization Act
(against Sion Elalouf)
allegations of mail fraud and wire fraud remain; allegations regarding witness tampering, obstruction of justice, and exerting influence to obtain documents from a Coats employee struck out

V. (federal law) Conspiracy to Cause Injury to Business and Property
(against all defendants except Knitting Fever)

VI. (state law) Perfidious Trade Practices (Deceit) under the Common Law of Unfair Competition
(against Knitting Fever and Sion and Diane Elalouf)

VII. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

In the Noro action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Eisaku Noro & Co., Knitting Fever, Sion Elalouf and Jay Opperman)

III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act
(against Knitting Fever)

IV. (state law) Perfidious Trade Practices (Common Law Unfair Competition)
(against Knitting Fever and Sion and Diane Elalouf)

V. (state law) Civil Conspiracy
(against all individual defendants, not companies)

VI. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

The files linked above include the reasons for judgment. If you hadn’t read anything up to now, finding it tl;dr, the memoranda (reasons) provide a good summary of the allegations made in each lawsuit. I feel compelled to caution first (due to certain earlier observations) that just because these allegations are summarized in the reasons here does not mean that a court has determined that all the allegations are actually true; the test for whether allegations should be dismissed generally requires the court to assume the allegations in a pleading are true.

What’s next? The actions could go forward, or one or more of the parties could appeal one or more of these orders; the moving defendants, for example, did not get everything they asked for. In any event, this action will move about as quickly as… my knitting. Which is somewhat existent, but not quite.

ETA: also, the court ordered that these two actions be consolidated for the purposes of discovery and trial.

Posted in Blogroll, legal briefs, themes | 5 Comments »

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