Mr.Intel's Journal: Untangeling a confusing /. story.

So I am reading this story with the related comments and I get to thinking about how confused so many people are about the issue at hand. What we need is some way to sort out the facts of the story and a guide to common misconceptions. Too much time on my hands? Perhaps, but it only took an extra 25 minutes to write this up after reading through the thread. Suffice it to say that I would never do this for *every* story one /.

Facts:

1. Monsterpatterns.com is selling sewing patterns that it obtained as "discarded" property. It includes pictures of the items in its effort to make the sales.
2. McCall and Simplicity are makers of the patterns found on the Monsterpatterns.com website and hold the copyrights for them. They have used the DMCA to cause the ISP (Digital River) for Monsterpatterns.com to disable access to the website. They claim copyright and trademark infringement.
3. Monsterpatterns.com is now suing McCall, Simplicity and Digital River for blocking its right to sell discarded property, the right to display pictures of copyrighted property it owns (under fair use) and for the revenue it has lost because of this action.

Common Questions/Misconceptions:

1. How is this piracy?

   Piracy is defined as " The unauthorized use or reproduction of copyrighted or patented material". Therefore, if McCall and Simplicity are correct in their assertions and Monsterpatterns.com is using the patterns in an unauthorized way, it could be considered piracy. However, it has been pointed out that "you only need permission to copy, perform, or create derivative works". Even so, you also may need permission to distribute copyrighted material, but not sell it as Monsterpatterns is doing.

2. DMCA confusion?

   Some may question whether the use of the DMCA was appropriate in the instance. However, McCall and Simplicity are claiming that the pictures on the website were violations of copyright and trademarks. That covers the copyright question. Since Monsterpatters.com is a web based business, it covers the digital portion. AFAIK, the DMCA does not distinguish between digital content and digital distribution in terms of applicability.

3. I thought garbage was abandoned property?

   The legality of taking trash from cans can vary from state to state, but generally is considered abandoned if left on public property. Trash on private property is still in possession of the property owner. The other issue is tresspassing which coincides with where the trash receptacle is physically located.

   Here is a good post on how and why merchants discard merchandise.