Monday, November 9, 2009

What to do when served with legal documents? Don't use the Ostrich Defence

People served with DMCA takedown notices, trademark infringement notices, demands for payment for copyright infringement with a threat of a law suit attached, or other legally threatening documents often want to know what the next step they should take should be.

Some will take--and I have actually seen armchair quarterbacks on websites advise them to do this--no action whatsoever. Their plan is simple: throw out the document they have been served with, then just deny if contacted again by the company that they ever received it. They then claim to have not known that they were infringing someone's copyright, like an ostrich with its head in the sand.

I'm not sure exactly what people intend to accomplish with this; the fact that somebody claims they did not know they were infringing a copyright does not let them off the hook for doing so. The statutory damages for copyright infringement in the United States are usually $750 minimum, and $30,000 maximum. Under US copyright law, mitigation of the penalty goes something like this:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. (Remedies for infringement: Damages and profits, s. 504 (c)(2))

It can be seen from this law that even if a person claims ignorance, the minimum penalty for infringement is $200. But note that the law does not just say an infringer can't have known that they were infringing, but that they "had no reason to believe that his or her acts constitued an infringement of copyright." In other words, burying one's head in the sand and republishing what any reasonable person might consider to be copyrighted--and many things could be considered copyrighted these days, for an example, an article about home computing which clearly would not have been around long enough for copyright to lapse--does not remove copyright liability.

The correct response when being served with any form of communication informing someone that they are infringing a copyright is not to ignore it, but to immediately contact a licensed legal professional in the alleged infringer's particular jurisdiction. To simply ignore letters threatening legal action and claim ignorance is incredibly stupid and nobody who values keeping their house should attempt this move.

No comments:

Post a Comment