How to Respond to an Online Copyright Infringement Notice Threat Letter

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This is Brian Hall, an attorney with Traverse Legal, PLC, a law firm representing copyright owners and defending copyright infringement causes of action throughout the United States.  Today, I will be answering the question:  How to respond to an online copyright infringement notice threat letter.   So before I answer that question, let’s talk about what an online copyright infringement threat letter is.

Sometimes, also known as a cease and desist letter, it’s a letter that is sent by an alleged copyright owner to someone claiming that they’re violating that owner’s copyright.  And, typically, It is in the form of copyright infringement, which means that the person receiving the notice of copyright infringement is making an unauthorized use of the copyright in such a way that it is confusingly similar and is, thus, causing damage to that copyright owner’s copyright.  So, the first thing that I always recommend to those that receive such a letter is to identify whether the claimed work is a registered copyright with the U.S. Copyright Office.  This is important because it will give insight into the possible monetary exposure that you may face.  Since there is statutory damages available under the federal laws, knowing whether it is a registered copyright will help determine whether you are exposed to statutory damages that may be up to $150,000.00, or, if it would be limited to actual damages. 

You should also identify whether it’s registered because this affects whether or not the person may file a lawsuit in federal court if the copyright is registered, or, at least, was attempted to be registered and denied, they have jurisdiction to file in a federal court.  It not, they’d have to sue in state court.  So, for example, in Michigan, they would have to file in a particular state court if the copyright was not registered.  But if it was registered, they could file in the Eastern or Western District of Michigan. 

The next thing that you should do if you receive such a letter is determine what kind of copyright is claimed.  There are all kinds of different types of copyrights.  It may be a photograph, a song, language from a blog post, or even software, so determining what they’re claiming has been violated is critically important.  And then you can see how you are using or, actually, not using what they are claiming to see if this is even a valid claim.

The next thing you should do is research the sender or copyright owner.  Knowing as much as you can about the person claiming copyright infringement is important.  It’ll give you an indication as to the seriousness of that person or entity.  It’ll give you an idea as to whether or not this person or entity has successfully pursued copyright infringement in the past.  It may also give you leverage to show that the person has previously tried to enforce their copyright without success and maybe even misused their copyright in some way, shape or form. 

And then finally, I always recommend this not because I’m a copyright attorney, but because I think it is critically important, you should contact a copyright attorney who can help you.  What I tend to do when I discuss these with clients is I educate them about the risks and options available.  I immediately identify whatever defenses there are and discuss the strengths or weaknesses of those defenses.  I can then perform legal research.   The reality is that most cases are specific to the facts and, therefore, you need to do research specific to those facts and see what laws control.  Then, I can help draft a response letter and even negotiate with the other attorney or the other side.  Oftentimes, a resolution can be reached or at least an indication can be provided by them showing how serious they are and whether o not these is heading towards a federal court lawsuit or other litigation. 

Lastly, I would simply caution anybody that receives a cease and desist or threat letter for copyright infringement to be careful when responding on your own.  If you choose to not use a copyright attorney, there are many pitfalls of trying to handle such a serious matter on your own.  You can make critical admissions against your interest that may be used against you later as evidence.  And you may even jeopardize your opportunity to resolve it early, inexpensively, and without much of a headache, so be careful if you’re going to do it without a copyright attorney. 
So, once again, this has been Brian Hall answering your question:  How to respond to an online copyright infringement threat letter. 

You’ve been listening to Copyright Law Radio, where copyright infringement, licensing, litigation, and news are always the topic of the day. Whether you are a copyright attorney or a client, we are the number one resource for all your copyright questions.

Comments

[Jay Tucker]

Great information Brian. I can confirm you do educate your clients. Thanks