Discussion:
What is the name of your state? NSW Australia
I have been accused by the Embroidery Protection organisation in the USA of infringing their IP. The problem is I haven't and I have the evidence to prove it but not the money to fight it in court.
I posted a set of designs on Ebay. These designs were all manually digitised by me, menaing they had to be hand drawn in vector format within the Embird program. This was done using my own drawings (not tracings or copied drawings, but my own sketches out of my imagination and not out of any book) plus 2 that were based on material that is copyright free. This copyright free agreement is clearly stated in the front of the book saying you can use up to 10 of the designs in any one artwork piece. I used 2, in separate designs and did not directly copy them but modified them, only using them as a base to lay my own work across (rather like tracing but not tracing exact lines). These drawings do not get saved onto the digitising file - they are a layer that is used only to trace from. This organisation now claim I infringed their IP. How can that be? I don't have any of their material except for 2 sets that were part of the dealer's package when I bought my machine, but which have never been opened because they are terrible and I'd never use them in a pink fit. The packages ae still sealed. An audit of my computer would show I've never had any of their embroidery files on my computer. So where do I stand? Am I now expected to pay thousands for a lawyer to defend myself against a spurious claim where they have absolutely no evidence, and would never be able to get any evidence because it doesn't exist, that I've done anything wrong?
Answer:
US Law Only - WHEN POSTING A QUESTION, YOU MUST INCLUDE THE NAME OF YOUR STATE
Answer:
US Law Only - WHEN POSTING A QUESTION, YOU MUST INCLUDE THE NAME OF YOUR STATE Although the poster is in Australia, eBay is an American company and the company leveling the charges is in U.S.A. (federal courts I would think)
I, in my non-attorney mind, would think the lawsuit that may ensue would be a matter of U.S. law (federal). I could be wrong, if so, just ignore me, if not,can we help the OP? Well, not me, this is way over my head but 'we' as in the collective of the posters.
to the OP: there is a poster/atttorney on this board, screen name; divgradcurl. This is his field of expertise and hopefully he will catch on to this and lend his mind.
Answer:
I, in my non-attorney mind, would think the lawsuit that may ensue would be a matter of U.S. law (federal). I could be wrong, if so, just ignore me, if not,can we help the OP? Well, not me, this is way over my head but 'we' as in the collective of the posters. Although eBay is a U.S. company, and this falls under U.S. copyright law, the issue here is that the U.S. courts do not have any jurisdiction over a citizen of another country unless said citizen of another country is actually physically in the U.S. Sure, she could be sued -- but so what? She can't be compelled to be brought into court in the U.S., and any judgment rendered against her would not be enforceable unless she had assets in the U.S.
Now, these folks could try and enforce the copyright in Australia -- the way copyright works, a copyright in one country can be enforced in virtually any other country -- but it would have to be enforced in Australia, under Australian copyright law (even though its a U.S. copyright), in the Australian courts, and then racer72's answer is the correct one.
Answer:
can we help the OP Not in any legal sense, because I don't think anyone her is an expert in Australian law. But the OP can just ignore these people unless they decide to file suit in Australia -- then she should hire an Australian lawyer. But that seems pretty unlikely.
Answer:
Not in any legal sense, because I don't think anyone her is an expert in Australian law. But the OP can just ignore these people unless they decide to file suit in Australia -- then she should hire an Australian lawyer. But that seems pretty unlikely.
My response:
Oooooo, a discussion on Diversity Jurisdiction! I love it! Can we throw in a little Buckeye Boiler in to make it interesting?
IAAL
Answer:
Although the poster is in Australia, eBay is an American company and the company leveling the charges is in U.S.A. (federal courts I would think)
I, in my non-attorney mind, would think the lawsuit that may ensue would be a matter of U.S. law (federal). I could be wrong, if so, just ignore me, if not,can we help the OP? Well, not me, this is way over my head but 'we' as in the collective of the posters.
to the OP: there is a poster/atttorney on this board, screen name; divgradcurl. This is his field of expertise and hopefully he will catch on to this and lend his mind. Try this website on for size and then tell me where it applies to the US.
See that little "au" at the end of the URL? Guess what that means? Ebay has it's own corportate entity in Australia and deals with the legalities of Australian citizens with Australian laws. Even though it is a US company raising the fuss, Australian laws are the only laws that apply in this case. And per this websites policy, US LAW ONLY.
Answer:
Try this website on for size and then tell me where it applies to the US.
See that little "au" at the end of the URL? Guess what that means? Ebay has it's own corportate entity in Australia and deals with the legalities of Australian citizens with Australian laws. Even though it is a US company raising the fuss, Australian laws are the only laws that apply in this case. And per this websites policy, US LAW ONLY. Hey, that's why I said that if I'm wrong, just ignore me.
It just involved too many U.S. entities to believe that U.S. laws were not involved in there somewhere, which still appears to be true but of no seriously realistic consequence.
I do believe the OP did benefit from the responses.
No intent to ruffle your feathers racer
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thanks to divgradcurl for the response
Answer:
Hi guys
thank you so much for your postings! It has put my mind at rest completely. here's another for you on the subject though:
I have since found out that the ESPC has an automated computer program that they run through every listing on Ebay and anyone who has anything listed that is not on their “exempt” list gets reported to Ebay for infringing the ESPCs IP even if they have no evidence to prove this. Unfortunately for Ebay, the law is written in such a way that they must comply with anyone who reports an infringement of IP, whether it is baseless or not. Somehow this ESPC has managed to get themselves onto a verified complainants list with Ebay so they simply just accept everything ESPC says whether it is true or not. This has come about because of litigation by ESPC against Ebay that was settled out of court.
My issue now is that by doing this, technically they have claimed copyright over my IP. I am not sure what the law states in the US, but they claim they can do this if you don’t have a copyright statement on your listing (although I know of cases where they HAVE had such a statement and still been targeted) and if you haven’t registered your copyright with some US authority. Unfortunately for them, my work was created in Australia and these are not necessary requirements for copyright to exist in Australia. In fact registration does nothing to prove copyright ownership here. Australia and the US are both signatories to international treaties and agreements regarding copyright, so that any copyright recognised in Australia is also recognised in the US (and the European Union and many other paces as well). There actions are tantamount to blatant theft – exactly what they say they are preventing.
The remaining question is, is what they are doing legal? If it is then what is there to stop me or anyone else from doing the same to them and reporting them to the ISPs carrying any of their products and having everyone of the websites shut down? If it isn’t legal, then they can be brought to justice over this simply by reporting them to the authorities here in Australia.
I am also of the belief that they are not backed by Bernina, Janome, Brother and Pfaff as they claim on their website. Is this not illegal?
The ESPC has also reportedly sent out thousands of letters to buyers of products on Ebay demanding $US300 and the surrender of everything they own in the way of digital embroidery files or they will take the person to court in Texas. They have reportedly followed through with the threat and allegedly, some poor people have been judged guilty and had court orders passed against them simply because no-one bothered to tell them that the court case was on, so they weren’t able to appear in court to defend themselves, or did not have the available funds to defend themselves, so had no choice but to pay up. There have also been reports of allegations of defence papers being submitted but being “lost” and never seeing the light of day in court. A check of the ESPC’s website tells all and confirms all of this, as do postings on Ebay US user forums and numerous yahoo chat groups dedicated to this issue. The ESPC also has the cheek to have an “amnesty” program for $US300 and the surrender of materials posted on their website., Surely this is extortion & blackmail? How is it any different from the Nigerian email scams? (Except that of course, the ESPC have plastered evidence of their crimes all over their website, so it should be fairly easy to find and prosecute them.)
I don’t have the money to instigate a civil case against them, but I certainly have the will to fight them through every resource I can gather – and I will, simply for the sake of achieving justice for all the people they’ve terrorised. If they think I am going to go away, they’ve picked on the wrong person here. If I do get taken to court, I have irrefutable proof of my ownership of copyright and this will result in the ESPC perjuring themselves by having made an untrue claim in court – which in itself has serious legal consequences for ESPC, as well as the probability of costs being awarded against them.
Answer:
Hi guys
As a teacher of English language could I please point out that the statement "US law only - when posting a question you must include the name of your state" is a very misleading statement? I read it to mean that you only needed to include the name of your state if you were in the United States - that is, this requirement only applied to US citizens. I now know it to mean you can only ask questions about US law and you must include the name of your state. Perhaps you might consider changing this statement to be a little less ambiguous?
I do apolgise if I violated any of your rules on the site with my first posting - like I said, I misunderstood the meaning of your statement.
English obviously isn't the same in every corner of the world and we Australians like to mangle the language as much as anybody (which I suppose is a bit rich coming from me since I am British by birth and both British and Australian by right of citizenship).
Answer:
The warning serves to explain that this website is only here in regards to laws within the U.S. With that note, anybody you find on this site will, for the most part, only be versed in U.S. law. The reason why it says you must post the name of your state is because laws may differ from state to state within the U.S.
Answer:
Everyone who received a letter or letters from the ESPC please read the following as I do believe it will be of interest to you:
Have you received a letter from the ESPC (Embroidery Software Protection Coalition)? Did you pay them money? Did you unknowingly purchase a cd that "alledgedly" contains pirated material? Please email me, I am very interested in speaking with anyone who has received the original 'notification' letter, the affidavit of guilt, any subsequent demand for action letters, and any other correspondence you may have received via United States Postal Service, electronic mail, or by fax. Additionally I would also like to get in contact with any person who may have spoken with one or more individuals at or regarding the ESPC. I will be happy to explain further my reasons for this request when you email me at [email]ESPCLetter@hotmail.com[/email]. I understand that many if not all of you may be reluctant to provide any personal contact information, and as well you should be......I am seeking to maintain as much discretion as possible in this matter as well. Upon emailing me I will provide you with a brief explination for my request as well as the number you can reach me at with instructions on how to block your caller ID information so that you may call me anonymously if you wish. Any questions, other then those seeking very broad/general information, posted in a public forum will unfortunately not be answered at this time as a measure to help maintain said discretion. Thank you in advance to everyone who decides to contact me.
Scam Scout
****Please be aware that I am not an attorney, nor do I claim to be a legal professional of any kind. I am not with any financial entity, information survey/pooling company, consumer awareness/advocacy group, or a member of the ESPC. I guarentee your privacy will be protected at all costs.