Hello. My name is John De Giacomo. I’m a copyright attorney and internet lawyer with Revision Legal which is an internet law firm. Today I’d like to talk to you about what you should do when you receive a copyright cease and desist letter. You’ve received a copyright cease and desist letter; it’s a pretty scary and frustrating experience. I’m hoping that these tips will help you to resolve your anxiety and to better understand where attorneys come from when they examine these issues.
The first step to take is to identify the infringing content. Here you have to ask yourself what is the infringing content and where is the infringing content. The question of what is is one of what is it? Is it yours or is it someone else’s? If it’s not yours there maybe additional defenses that apply. The next question is where is it hosted? Is it on my server or is it on someone else’s server? If it’s on your server and it’s not your content, additional defenses might apply such as the Safe Harbor which is under the Digital Millennium Copyright Act.
The next question to ask yourself is, “Is the content licensed?” If the content is properly licensed then there is no copyright infringement. Again is say properly licensed because there’s a difference between someone that believes that something is licensed and something that is actually licensed. You should speak to an attorney about that distinction. If the content is not properly licensed then you should identify your applicable defenses. That’s the next step, identify your defenses.
Defenses such as fair use, parody, estoppel or latches may apply to preclude a claim of copyright infringement. These defenses are incredibly fact-dependent. For example, fair use is not an easy analysis. It is based on case law within a specific circuit and within a specific factual scenario. It’s very important that you consult with an attorney to identify these defenses for you and to provide you with an analysis of your risk with regard to asserting these various defenses.
The last thing to do, and we just covered this briefly, is to hire an attorney to draft a response letter. Because copyright infringement carries significant penalties, it’s important that the response letter is drafted by an experienced copyright attorney who can properly identify your risks, your defenses and draft a letter that will protect your interests.
A copyright cease and desist letter is a pre-litigation demand. The sender — typically an attorney representing the copyright owner — is putting you on formal notice of the alleged infringement and demanding that you stop the infringing activity, and often that you pay damages. The letter is not a lawsuit, but it can become one if you ignore it or respond poorly.
The practical significance of receiving the letter is that it establishes “actual knowledge” of the claimed infringement. This matters for two reasons: first, if you continue the allegedly infringing activity after receiving the letter, a court will likely find willful infringement — which raises the maximum statutory damages from $30,000 to $150,000 per work under 17 U.S.C. § 504(c)(2). Second, if the content is hosted on your website as user-generated content, your DMCA safe harbor protection may require you to act promptly upon receipt of notice.
Not every cease and desist letter represents a legitimate copyright claim. Before responding, have an attorney evaluate the following:
Copyright protects original works of authorship fixed in a tangible medium. Works that consist of purely factual information (phone directories, stock data, government publications), works that are in the public domain (pre-1928 works are generally in the public domain), and works that lack sufficient originality do not qualify for copyright protection. If the claimed copyright is invalid, there is no infringement.
The copyright owner is the person with the right to sue for infringement. Ownership can be complicated: works for hire belong to the employer, not the employee-creator; jointly authored works are owned by all authors; and transfers of ownership must be in writing to be valid. If the person sending the cease and desist letter does not own the copyright, the claim may be asserted by someone without standing.
For the claimant to sue in federal court, the work must be registered with the U.S. Copyright Office. For statutory damages and attorney’s fees to be available, the registration must predate the infringement or have been filed within three months of first publication. A copyright claimant who threatens statutory damages for infringement of an unregistered work is either misinformed about the law or bluffing about their litigation intentions. Checking the copyright registration status of the claimed work — which can be done through the Copyright Office’s online catalog — is one of the first steps in evaluating the letter’s legal foundation.
Fair use is the most commonly invoked defense in cease and desist response situations. To evaluate whether it applies, courts weigh four factors: the purpose and character of the use (transformative uses weigh heavily in favor of fair use); the nature of the copyrighted work (creative works receive more protection than factual ones); the amount copied; and the effect on the market for the original. Fair use is determined case by case and is not a safe harbor — it is an affirmative defense that must be proven at trial if the case goes that far.
If the content was uploaded by a third party to your platform and you qualify as an online service provider, the DMCA safe harbor may shield you from liability. This defense requires that you have a registered DMCA agent, a repeat-infringer policy, and that you act expeditiously to remove infringing content upon receiving notice. If the content was uploaded by you (not a third party), the safe harbor does not apply.
If the content is properly licensed — whether through a written agreement, a Creative Commons license, or any other authorization from the copyright owner — there is no infringement. “Properly licensed” requires that the license actually covers your specific use. A Creative Commons license that permits non-commercial use does not cover commercial publication. A license granted verbally is enforceable as a non-exclusive implied license but may be harder to prove.
Copyright infringement claims are subject to a three-year statute of limitations under 17 U.S.C. § 507(b). If the alleged infringement occurred more than three years before the cease and desist letter was sent, the claim may be time-barred. The limitations clock typically runs from when the copyright owner knew or reasonably should have known of the infringement.
The response to a copyright cease and desist letter serves multiple purposes: it demonstrates that you are taking the claim seriously, preserves your legal defenses, and opens the door to a negotiated resolution that avoids litigation. An effective response:
The tone and content of the response letter can significantly affect the claimant’s willingness to negotiate, the course of any subsequent litigation, and the court’s evaluation of good faith. Do not draft a response letter without an attorney.
If you have questions about copyright law or copyright infringement, contact the copyright attorneys at Revision Legal at 855-473-8474 or complete our contact form.
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