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How To Respond to a Copyright Cease and Desist Letter

By Eric Misterovich

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 defensed.

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 spoke about it, is to hire a copyright lawyer to respond to the cease and desist letter. Of course it sounds like I’m trying to upsell you but it is important to have an attorney respond to a cease and desist letter for various reasons. Number one like we discussed because defenses are fact-dependent. The second and really the most important is that copyright infringement carries with it in the modern era statutory damages of up to $150,000 per work infringed and costs and attorneys fees in some exceptional cases. Actually not just in exceptional cases but in cases where a party is the prevailing party.

It’s important that you contact a copyright attorney that’s well versed with the law to help you navigate these problems. A copyright attorney will identify your defenses and identify non-legal leverage as well as legal leverage to assert that response letter in an attempt to stave off a copyright infringement law suit. That’s very important that’s what you want to do with the initial response letter.

Again my name is John De Giacomo I’m a copyright attorney with Revision Legal. If you have any questions feel free to contact us. Thank you and have a great day. Contact us at 855-473-8474.

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