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.


Wednesday, January 27, 2016

Talk to the police? No way.

They say art imitates life.  Sometimes it is the other way around.  I'm thinking about all those TV crime shows where the suspect stupidly answers police questions only to find himself in deeper trouble.  Fact:  Most criminal defendants are such because they talked to the police.

Let's be clear:  In criminal law, the only time you must answer questions is if you properly have been subpoenaed.  Typically that means personally being served specific paperwork (which you can challenge), called into court, seated in the witness chair, and questioned before a judge.  And even then - if you don't mind being held in contempt and placed in jail for a while - you still cannot be forced to utter a word (at least in this country).

So why do people talk to the police?  One reason is they think they have to (they don't).  Another reason is that they think it will help (it won't).  Beyond those reasons you get into all kinds of psychological theories about why people talk to the police. 

There is no need to complicate things.  Police ask questions when they don't have enough information.  If they don't have enough information, why give more to them?  A lack of information usually means lack of enough reason (or cause) to arrest you, or search your house, or seize evidence from your trunk. 

Will cops make up stuff if you don't give it to them?  Of course.  They are only human (newsflash to many judges, prosecutors and jurors) and prone at least to the same temptations to lie - to look better, or advance, or win - as anyone else.  But a lying cop is the exception.  A lying cop is a sitting duck, defenseless to an inquiring and probing defense team.  A lying cop will lie again, increasing the chances he or she will be caught.  Judges love cops, but not the lying kind.

When police (and judges and prosecutors) are arrested, they don't talk to the police.  Why should anyone else?

Being questioned by police?  Smile and politely insist on a lawyer.  Stick to it.  Don't fall for or submit to anything the police say in response.  They are trained to get you to talk, in all kinds of friendly, reasonable sounding and sneaky ways.  One of my favorite ploys is when the cop says "How can we know what happened unless you tell us your side of the story?"  What?  Whether the cops know "the story" is not a suspect's problem!  By telling them your story odds are you make yourself more of a suspect.

Even if you are "just a witness" you do not have to talk to the police.  And since you don't know what the cops know, or what or who they are looking for, or even whether you are "just a witness" - cops don't have to be honest or answer or tell you anything about their investigations - why would you want to risk digging your own grave?

If you choose to talk to the police, you'll only increase the odds of spending way more time (and money) with a defense lawyer anyway.

Here at Sanderson Law, P.C., we can help if you find yourself in a situation.  Best call us before you talk to the police.  303-444-8846.

Friday, January 15, 2016

8 Things to know about Domestic Violence offenses in Colorado

8 Things to know about Domestic Violence offenses in Colorado

1  Domestic Violence Can Be Any Crime

It's commonly misunderstood that Domestic Violence charges mean that someone was violent during the events concerning the charge. In Colorado, "Domestic Violence" of course means an act or threatened act of violence upon someone with whom the accused has had intimate relationship. But that is not the only way a crime may be classified as "Domestic Violence." It also includes any crime committed as a means of coercion, control, punishment, intimidation, or revenge against an intimate partner. So, for example, if a girlfriend breaks her boyfriend's Sony Playstation when he is not even home, because she is mad he went out with another girl to the movies, it is arguably an act of domestic violence.

2  Colorado Has Mandatory Arrest Laws

For most crimes, a peace officer in Colorado is given discretion when and where, and even if, to charge and or arrest someone. Not so in Domestic Violence Cases. If officers are called out and they have probable cause to believe someone committed an act of Domestic Violence, the suspect of the crime must be arrested. The legislature has told the officer that he must do this "without undue delay" meaning that if the person is there, the arrest must be made then and there. In addition, the arrested person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard.

3  A Victim Cannot "Drop Charges"; Only the State "Presses Charges"

For whatever reason, the person who reported the crime may decide they no longer want to pursue a case (perhaps they never wanted to go forward with the case); this does not however mean that the case will be dismissed on that fact alone. All crimes in Colorado are said to be affronts to the peace and dignity of the State. Despite someone being designated the victim, only the DA who is prosecuting the case can make the call about whether the case goes forward or not. Except for unusual circumstance, even a judge cannot dismiss the case.

4  Domestic Violence cases are Victim's Rights Cases

Under the Colorado Constitution, some crimes are considered victims' rights cases. By definition, all Domestic Violence crimes are victim's rights cases. This means that the victim has several rights, including the right to consult with the DA before any offers are made and when bond is addressed. They have the right to speak at sentencing and to be notified when an incarcerated defendant will be released. Despite the fact that a victim cannot control whether a case is prosecuted or not, the victim can have a dramatic effect on how a case turns out.

5  Sometimes, Misdemeanor Charges Can Be Elevated to Felony Charges

In Colorado, if a person is convicted of an offense which would otherwise be a domestic violence misdemeanor and has already been previously convicted three times of acts of domestic violence, the person may be considered a habitual domestic violence offender and misdemeanor may be bumped to a class 5 felony. If the person is found by the court to be an habitual domestic violence offender, the court would then sentence in the presumptive range for a class 5 felony or 1 to 3 years. The DA has to give notice to the accused that they intend to do this, but keep in mind that while the accused may initially be charged with only misdemeanors, the DA may amend the charges upward if the accused has a significant domestic violence criminal history.

6  A Domestic Violence Conviction Will Impact Gun Rights

Federal law mandates that anyone convicted of a Domestic Violence charge can not possess a firearm. If the Domestic Violence conviction is for a felony, State law also makes it a felony to possess a firearm. These bans are for lifetime.

7  A Domestic Violence Conviction Will Result in DV Classes

Any sentence imposed by the court for a domestic violence crime, must order the defendant to complete a treatment program and a treatment evaluation. The domestic violence management treatment board, a state agency, approves both the treatment providers and the treatment. This gives the board a tremendous amount of power. In most cases, even for very low level misdemeanors, this means at least 36 one hour sessions over the course of 36 weeks. The treatment is required even if the person receives a deferred judgment and sentence. The only time treatment will not be imposed is if the person is sent to prison.

8  No In Home Detention on DV cases

For non-DV cases, in-home detention, sometimes called Electric Home Monitoring or EHM, is normally available as a sentence to custody or as a condition of probation. However, someone who is convicted of a Domestic Violence crime, is not eligible for home detention in the home of the victim. The only way someone could qualify for home detention is if they did not live with the victim - obviously something that rarely happens with married couples.

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