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    • jtpeluso

      I’d be curious to see the C&D letter Fox sent to Etsy as opposed to the one Etsy sent their subscribers. The letter from Etsy doesn’t explicitly state what intellectual property Fox believes is being violated or how. They reference having rights over design and merchandizing rights, but it’s not clear that the hat falls under their design rights. Also, they have the right to license merchandise, but there was no merchandise until after the ‘browncoats’ made the hats intoasymbol far removed from the original use asacostume piece. This added meaning and variations in design may makeasuit difficult to win. The fact that they’d be suing housewives with knitting habits makes it pretty certain they’d recover less than the suit costs them. Also, the merchandizing licensee who got miffed about the etsy sellers may themselves be subject to an unfair competition claim by trading off the good will and hard work of the many ‘browncoats’ who created meaning in what is otherwise an unremarkable orange hat ofatype that most snowboarders own. Plus, the licensee just shot themselves in the foot business-wise by pissing off the only segment of the population interested in buying these hats. Fox shot itself in the foot by not using the goodwill of the fanbase to its advantage. They had fans willing to wearastupid-looking hat in public as an expression of their shared enthusiasm, not for the product or to copy elements of the show itself, but of the community and ideas that grew up around the world the show imagined. Those are not easily protected under IP law. Yet instead of encouraging the hat’s use and thereby maintaining public interest in the show (and the dvds, other merchandise, etc that Fox and its licensees CAN make money on) they threatenadead end law suit and punish the fans who were doing promotion work for free. Those fans and their devotion to the show have made Fox far more money than the licensee would ever see fromalawsuit (which they might not even be able to win). Fox would’ve been smarter just to write the licenseeacheck and suggest they try to tap into the browncoats’ enthusiasm in another way. Many times, companies will send outaC&D letter in the hopes of getting the actions to stop without ever actually intending on spending money to pursue the matter further if the letter doesn’t work. They’re not going to be able to recover enough from anyone to makeasuit worthwhile, their claim is dubious, and the ‘infringement’ has probably done Fox more good than harm, in terms of promoting the show for free. Weak case, no prospect of recovery, and the licensee just made sure thatalarge part of what could otherwise have beenadedicated customer base will now refuse to buy anything from them on principle. Good job, geniuses.

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