Thursday, January 28, 2016

Accused of copyright infringement? Read this.

Recently we've seen more cases involving allegations against clients of copyright infringement. 

The allegation comes in the form of an email to the client, claiming that a photograph or similar on its website infringes on the owner of that photograph etc.  Computer searches silently scouring the internet make it easier and cost effective for various organizations including so-called national law firms claiming to have enforcement rights to send out these types of email (which can include spam and emails easily mistaken for spam). 

The email demands payment in exchange for a retroactive license to use the photograph, and threatens all kinds of nasty legal consequences if the client refuses.  The question always is Should the client just pay the requested amount?
In order accurately to evaluate any alleged claim and decide whether to "just pay," we send a letter (not an email) to the demanding organization asking for information relevant under the applicable remedial statute, i.e., 17 USC 504.  This is the provision of the United States Code that governs recovering damages for copyright infringements. 

The letter asks the demanding organization - in order to be able to evaluate its demand - to advise:

1.     whether you (including the copyright owner) are seeking to recover actual damages and/or profits of the alleged infringer.  If so, please provide information as to how much you are seeking and any documentation supporting same.

2.     whether you are seeking statutory damages and if so, the total amount sought (including for each alleged actionable infringement).

3.     whether you are claiming any alleged infringement was committed willfully, and on what basis.  Kindly provide any supporting documentation.

4.     whether you maintain that the alleged infringer was aware or had reason to believe that its acts constituted an infringement of copyright, and on what basis you do so.  Kindly provide any supporting documentation.

5.     what is your basis for threatening to seek an award of court costs and attorney fees?

6.    Also, kindly provide documentation confirming that you are authorized to resolve on the owner's behalf any alleged copyright infringement, in addition to a proposed release license agreement duly executed also by that person.

         It is then up to the demanding organization to respond or not.  Failure to respond with the requested information could mean that any claimed recoverable damages are minimal or non-existent and/or that the demanding email is nothing more than a shakedown attempt.  Of course receipt of the requested information allows a more intelligent analysis (in view of the applicable law) in determining whether to pay or not. 

     Call Sanderson Law, P.C., at 303-444-8846, if you or someone you know needs help.


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