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Boing Boing Splat

Heather Ross for Munki Munki - Pool PartyToday BoingBoing unleashed a screed against Reprodepot, an online store offering a particular printed fabric under what was essentially a limited license.  This turned into a general rant about intellectual property, with accusations ranging from an analogy to feudalism to the oppression of physical laborers.  And all without being able to spell “copyright.”  (Or was the heading “Coprygihted fabric” deliberate?)

Now while screeds are not particularly Counterfeit Chic’s style, the internet is certainly a medium that encourages hasty statements.  This is fine – except when portions of them are substantially incorrect or misleading.

So just to clarify, now that the dust appears to have settled:

Fabric designs are subject to copyright under U.S. law.  This was not always the case; however, in the mid-twentieth century courts quietly decided that printing on paper and printing on fabric were legally indistinguishable, and thus allowed original fabric patterns (printed or woven) to become part of the domain of copyright.  In addition, some original fabric patterns qualify for design patents.

The copyrightability of fabric designs, however, has little to do the legal legitimacy of Reprodepot’s statement regarding Heather Ross’s “Pool Party” design for Munki Munki, which was apparently as follows:

Please note: This fabric can be purchased for personal sewing projects only. This print cannot be used for items made for resale.

While statements like this license are often used in conjunction with the sale of, among other things, software to secure certain rights to the seller, these rights are separate from the intellectual property rights associated with the goods.  In other words, a license is a private contractual agreement, not a property right granted by the government.  And private parties can place a wide range of restrictions on many types of property at the time of sale – e.g. “You can buy my house, but only if you agree to keep it painted pink.”  If the buyer chooses to accept the restrictions, fine; if not, the buyer is free to look elsewhere.

The use of licenses to create additional restrictions on intellectual properties (again, think software) has drawn a great deal of fire over the past decade, which is probably why BoingBoing reacted so strongly to this one.  A limitation placed on the sale of fabric, is hardly evidence of the great evils of the intellectual property system. 

In fact, it turns out that Reprodepot had a specific reason for the limitation:

We had added that disclaimer for that particular item years ago because the person who designed it is a friend of ours and she had a business manufacturing children's clothes using this fabric (among others) that she had personally designed. We are selling the overruns from that business.

Years ago, we had had a problem with a few people making children's clothing with her fabric, and selling them on Ebay while using her company's name which was hurting her business. The text was posted specifically as a deterrent to those people.

As a result of the BoingBoing post, however, Reprodepot now believes that its statement was unenforceable and has reworded it as a request.  That’s fine if it better reflects the seller’s intent, but the statement actually was enforceable as a legal matter (if not as a practical one).

And one other thing.  BoingBoing’s post claims that “selling textiles has been around for millennia” and seems to blame creeping IP protections for any sort of limitation on their marketability.  However, sumptuary laws (governing the consumption of luxury goods, including clothing and textiles) have also been around for millennia, so the “good old days” before IP weren’t quite what the post would seem to imply.

All of which leads to a caveat:  Many of us have formed our opinion of the IP system – and property rules in general – by reference to new digital media and to the aggressive enforcement practices of certain IP owners.  But just because we object to certain expansions or uses of IP doesn’t mean the entire concept of allowing creators to own their own work is evil.  In fact, open source licenses are based on the idea that authors own their work, and may choose to release it into the public domain subject to restrictions of their choice (including noncommercial use, the type of restriction originally placed on the fabric for sale here).  In industries where there is healthy competition, if you don’t like the restrictions placed on one thing, you can always buy another.  Or create your own.