How To Respond To Settlement Letters In Copyright Infringement Cases

Settlement letters are sent to particular internet subscribers who are identified to have infringed a copyrighted material. Also known as letter of demand (LOD), the letter is usually composed of the name of the infringer, IP address, and all the details about copyright infringement. First of all, getting a demand letter such as a TCYK letter more likely means that you did violate the law and the copyright enforcers have evidence to prove that you have infringed a copyrighted content. Second, it is not advisable to just ignore the letter as it could result to serious legal consequences. So, when you get a demand letter, respond to it. In every illegal download case, ask about the situation or what the letter means. If you ever find yourself as a “John Doe” defendant, here are a few practical tips that can help you in your defense in the lawsuit:

– Settlement amounts are usually negotiable. If you get a TCYK letter or any settlement letter, chances are you will be offered a settlement amount. The figure may be changed depending on your approach or how you attempt to negotiate. So, it would not hurt to try especially if you really did it.

– Among the copyrighted materials that you can possibly pirate, porn bears the most embarrassment and it involves more risks so find a way to settle quickly. Don’t waste your time delaying the case. It is best to make it go away the minute it’s presented to you.

– Do not fight a subpoena. Doing so could only expose your identity. Copyright infringement is not something that you could just take for granted. You need to protect your own identification and avoid a potential scandal that will not help you in any way in your life.

– Fighting a case could lead to more expensive costs compared to every negotiated settlement. Besides the hassle that can be expected in a lawsuit, there are legal fees that you need to consider should you decide to fight a case. You may get a total that could have been avoided if you just settle.

As provided by copyright law, a copyright grants a creator exclusive rights to the distribution or reproduction of his original work. There may be exceptions but initially, the creator owns the copyright of their created work. It would be good if people have a better understanding of how creators such as those in the entertainment industry come up with works of art. But in the meantime, they should focus on how to respond to a letter of demand.

Basics of Navigating the Digital Millennium Copyright Act (“DMCA”)

Due to the proliferation of the Internet, social media platforms, and hosting websites, online service providers have often become unwitting hosts to materials that may potentially infringe on the copyrights of another. Likewise, original content creators have also increasingly found themselves to be targets of unjustified DMCA takedown requests. Sometimes these takedown requests are made for anti-competitive or harassing purposes by competitors of the website operator.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor in certain circumstances for website operators, who host materials submitted by third parties that may infringe the copyrights of others. If the copyright owner provides a take down notice in compliance with the requirements of the DMCA and the website operator timely complies with its obligations under the DMCA, it may be shielded from liability for copyright infringement. The website operator can adopt and post a copyright policy to facilitate DMCA compliance. A sample copyright policy is below, which requests that a takedown notice including at least the following information:

· A detailed description of the copyrighted work you believe is being infringed upon;

· A description of the location of where the alleged infringing content appears;

· Your contact information (including name, address, telephone number, and email address);

· A statement that you have a good faith belief that the alleged infringing use is not authorized by you as the copyright owner, your agent, or by law;

· A statement affirming that, under penalty of perjury, the information in the notice is accurate and that you are indeed authorized to act on behalf of the copyright owner; and

· An original signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of the copyright as well as to submit the claim.

In addition to the policy, the website operator should register an agent with the United States Copyright Office.

While the above identifies a number of eCommerce and internet law issues affecting compliance with the DMCA, an in-depth analysis may be required. For example, the timeliness requirement for the takedown has been a hot litigation topic lately. Additionally, the DMCA applies to copyrights only, and does not currently provide a safe harbor for trademark infringement or patent infringement claims. These type of claims stemming from users of the website can be addressed in the Terms of Use or other website agreement between the website operator and its users.

Ensuring That You Own Your Content’s Copyright

You have been a prolific writer for your business for a long time and, of course, just like all other writers, you use sources to back up the facts that you write in your content. Of course, there is no reason for you to assume anything other than the fact that you own the copyright of all of the content that you are writing.

Sometimes the line is obscured

If you own the copyright on specific content (including graphics, videos, etc), that means that you can do anything that you wish with that content. After all, it belongs to you. On the other hand, if someone else owns the copyright on the content, you are severely limited from doing what you want with that content. That means that you can’t recycle the content and use it over and over again, you can allow other people to post the content on their websites (for increased exposure and a wider reach), and you can’t touch the images (making them smaller, larger, wider, narrower). Your hands are tied in that case. However, you may not always understand when it is appropriate (legally and ethically) to alter the content in any way and when you really need to be hands off.

You probably have an accurate sense that you can’t just find a graphic image online, copy it, and embed it in your content. That is just common sense. If you use any portion of someone else’s content (words), you probably realize that you must give the author credit for what he or she has written. However, the copyright goes far beyond that. It is extremely important for you to understand the basics of copyright and how that applies to you and to your business. If you don’t pay attention to what you are allowed and not allowed to do, you may get yourself into trouble (legally and financially speaking). There are some concepts that will benefit you if you at least have a working knowledge of them. Hopefully, they will not actually apply to you at any time but being aware is very important for you.

Have a licensing agreement, including an invoice: That is an invoice from the person who owns the copyright. If you plan to use material of which someone else owns the copyright, you will probably need to pay that person (or that entity) some money. There may be rare occasions in which the person or entity will not charge you money but you need to have a written agreement between you so that you don’t get into trouble.

Lawsuit as a result of copyright infringement: This is a lawsuit that occurs in a federal court. The person or entity doing the suing is the owner of the copyright. The lawsuit will make demands, such as your eliminating all of the copyrighted material from wherever you have posted it online. You will also (most likely) be expected to pay some amount of money (damages) and there is also the potential that you will be asked to pay the lawyers’ fees.

Cease-and-desist communication: This is a communication (usually in the form of a letter) from the person who owns the copyright telling you that you must delete their content from wherever you have posted it.

Digital Millennium Copyright Act takedown notice: This is a notice that refers to the act on behalf of the copyright owner. It is sent to your web hosting service. It will insist that your web hosting service disables any access to wherever the copyrighted content appears.

The disturbing thing about this situation is that, depending on the whim of the copyright owner, you may end up paying in any number of ways. It might be minor but it might be major as well. You may be notified of the copyright violation in stages. If you respond immediately after you receive the first notice, you may get lucky and after doing whatever is demanded of you, that will be the end of it, as long as you never do it again. However, if you continue, the consequences will probably get more and more severe. You will need to tread lightly in this situation and do whatever you need to do quickly if you want to escape relatively unscathed.

Educate yourself about your rights

When you first write a piece of content, you need to make sure that you take all measures to ensure that you never run into these types of problems that are described above. If you don’t happen to be the one creating the content, you need to make sure that you get the other person to assign copyright ownership to you. It is critical that you have it in writing. The best thing to do is to have a written contract between you and the other person. Hopefully, in that case, there will be no question about anything. If you want the creator to be able to benefit from the content, it is safest to put that into the contract as well. The sorts of things that you will want to put into the contract are: exactly what is being created, how revisions are handled, deadlines and consequences if those deadlines are not met, the payment schedule, who will own the copyright, and who will be responsible for the consequences if the copyright is violated. If you have a long-term relationship with that person, you will probably find that you will need to revise your contract over time.

Conclusion

Copyright ownership may not have been something that you thought about very often (or at all); however, you need to have it in mind all of the time and be cognizant of doing the right thing. If you don’t, the consequences will probably not be pleasant. You need to protect your reputation and your bank account at all times. Copyright laws are very complicated and you may not even realize that you are violating any of those laws. However, you need to be aware of what you are doing and make sure that you don’t continue to violate any copyright laws. Interestingly, there are a few situations in which you don’t need to get permission from the copyright owner of the content. You should do the research and determine when those rules apply, which will ease the burden a little bit. Undoubtedly, you were not aware that you were doing anything wrong. However, once you are aware, you need to make sure that you do everything by the book.

Carolyn T. Cohn is the Chief Editor of CompuKol Communications. Mrs. Cohn has a wealth of experience in managing people and projects. She has run several editorial departments for various companies. Mrs. Cohn has 25 years of editorial experience and her expertise covers a wide range of media, such as online editing, editing books, journal articles, abstracts, and promotional and educational materials. Throughout her career, Mrs. Cohn has established and maintained strong relationships with professionals from a wide range of companies. The principle that governs her work is that all words need to be edited.