Responding to a copyright cease and desist letter

Disclaimer: The following article with respect to responding to a cease-and-desist letter is for informational purposes only and does not constitute advertising, a solicitation, or legal advice. Review of or use of this information does not constitute formation of an attorney-client relationship. COMAR LAW disclaims all liability with regard to use of this information. Readers in receipt of a cease-and-desist letter should not rely upon any information herein without seeking legal advice from a licensed attorney in the reader’s state.

Receiving a threatening letter from a lawyer is never a great moment. This is especially true when the threatening letter relates to conduct on the internet, and in particular, claims of copyright infringement.

July 2012 Wired article gives a good summary of recent litigation tactics by pornography studios that have targeted at least 130,000 IP addresses for lawsuit and settlement.

There are other, more run-of-the mill copyright disputes in which someone claims infringement of an image, movie, audio-file or even text-book on the internet.

Here are five quick tips with respect to copyright cease-and-desist letters:

(1) Research who the letter came from. Is it coming from an individual, or a lawyer? Is the lawyer reputable? Search the internet for clues with respect to source, and possibly motive.

(2) What does the letter demand? Some copyright cease-and-desist letters simply want the individual to stop displaying or using the work. Other letters request payment in the form of a retroactive license. Letters that seek a settlement amount (especially a large settlement amount) will usually have far more aggressive lawyers working on the case who may be working under a contingency arrangement (in other words, they get a fixed percentage of any settlement).

(3) What is the time-frame for a response? Even if you choose not to seek legal counsel (which you almost certainly should), it may be a good idea to at least acknowledge receipt of the letter and that you are taking time to review the letter with counsel. In the copyright context, ignoring a cease-and-desist letter may be used by the other party as evidence of willful infringement should the matter proceed to court.

(4) In the context of file-sharing infringement, you may have received a letter from your Internet Service Provider (“ISP”) indicating that the ISP has received a subpoena from a company claiming that your IP address was associated with unauthorized sharing of a work. Here, you will want to seriously consider consulting with an attorney licensed in your state as you may have state privacy protections with respect to the subpoena.

(5) Finally, remember to stay calm. People get scared about copyright issues because they are arcane and complicated, but it never helps to panic. If you cannot afford a lawyer, consider reaching out to pro bono referral services, or even non-profits like the Electronic Frontier Foundation who occasionally take on pro bono work for cases with important policy aspects