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When Corporations Want Profits, They Don't Ask for Permission

Large retail companies are stealing the work of independent artists — and forcing them to remain silent about it. 



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Last year, federal officials also acknowledged flaws in the "notice and takedown system," that make the process very challenging for artists. In a July 2013 paper on copyright policy, the US Department of Commerce's Internet Policy Task Force noted that individual creators or small enterprises do not have the resources to engage in ongoing monitoring and notification process required by the Digital Millennium Copyright Act (DCMA). The report cited concerns from copyright holders regarding the "brief effective lifespan of takedowns" and the "lack of any affirmative duty to monitor by ISPs [Internet Service Providers]."

"Right holders report that they find themselves in a game of 'whack-a-mole' — a never-ending cycle of sending notices about infringing content that may be taken down, only to reappear a short time later in a new location on the same website," the report said, noting that the system might work better if "takedown" meant "staydown." Legislation could impose a system in which copyrighted content was flagged and blocked, though such a system would likely come with a range of technical and legal challenges, the report continued. It noted that voluntary cooperation between ISPs and right holders would offer a more flexible way of addressing the problem. Currently, through the DCMA, certain online companies are shielded from liability through "safe harbors" that protect them when they are serving as a "conduit for transmitting content."

In other words, if companies like Amazon, Etsy, and eBay adopted stricter, more proactive anti-infringement policies — or were required to do so through legislation — it could go a long way in tackling the problem. In Spinello's case, for example, after she notified Amazon of the infringement by Fashion Destination, the site removed the necklaces from its catalog. Weeks later, however, the Fashion Destination listings were back up again on Amazon with virtually identical listings — same product numbers, titles, and images.

"I'm sick of playing games with these people," Spinello said during a phone interview after discovering, only because of our conversation, that the items were back up again even after she thought they had been permanently removed weeks earlier. "My heart is beating really fast right now. That's just so ballsy of them." Similarly, Nasty Gal, another one of her recent infringers, told Spinello it removed its necklace rip-off, but months later the item is still viewable on the site, simply with a "sold out" notice added.

Richmond, the Ohio painter, has had the same problem with eBay for years. Xun's original eBay store disappeared after his elaborate prank, but similar versions have continued to pop up on the site since 2010. After talking with me last month, Richmond did a fresh search and quickly emailed more than ten different current links on eBay of pirated paintings of his, all from China, and with many similarities to the original listings from Xun. The ads have a similar format and language and some variation of the title, "Oil painting gay art male nude." It could very well be Xun using a different name.

All Richmond can do is send takedown notices to eBay, which typically complies, but does nothing to prevent the user from returning days later selling the exact same rip-off. "I've reported people so many times and then I see their store right back up there again. There must be a way that eBay can be stricter," he said, arguing that when these fraudulent companies have successful stores, eBay, which profits from their success, has little incentive to permanently shut them down.

Representatives of eBay did not respond to repeated requests for comment. And reps from other websites did not indicate any interest in changing their current practices.

Erik Fairleigh, Amazon spokesperson, said in an email: "Amazon respects the intellectual property of others and takes this matter very seriously," and declined to comment further on the topic of blocking repeat infringers.

Sarah Feingold, counsel for Etsy, said that the company removes items when it receives proper notices of infringement. In some cases, it may discontinue service to repeat offenders, the company policy further states. She wrote in an email, "We are open to all creative makers, curators and artisans, and we don't pre-screen items or shops. When a seller opens a shop and lists an item, they are agreeing to our terms of use, including trademark guidelines, and copyright and IP policy."

She added: "With regard to intellectual property and copyright, Etsy is a venue, not a judge or jury."

It was cold inside Eddie Colla's studio on a Wednesday morning in December. The long-time East Bay artist lives next door to the roughly 4,000-square-foot warehouse studio that he shares with several other artists on a desolate street in East Oakland.

Taking a break from his work, Colla recalled a day in 2009 when he scribbled his now-famous idea on a piece of paper: "If you want to achieve greatness, stop asking for permission." The sentence seemed "wordy and cumbersome" and he didn't think twice about it, he said. But a friend later noticed the quote lying on his desk and suggested he do something with it.

The original message was that street artists should not worry about the approval of others. "If you make your success contingent on someone else's validation, you're setting yourself up for failure," he said. Now, it's largely associated with Walmart's theft.

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