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 Chilling Effects Clearinghouse > Piracy or Copyright Infringement > Notices > DMCA Copyright Infringement Notice Forwarded to User By ISP (NoticeID 973, http://chillingeffects.org/N/973) Printer-friendly version

DMCA Copyright Infringement Notice Forwarded to User By ISP

November 25, 2003

 

Sender Information:
Paramount Pictures
Sent by: BayTSP
[Private]
Los Gatos, CA, [zip]

Recipient Information:
[Private]
[Private]
IN, [zip], USA


Sent via: email
Re: DMCA Notice

Dear Sir or Madam:

BayTSP, Inc. ("BayTSP") swears under penalty of perjury that Paramount Pictures Corporation ("Paramount") has authorized BayTSP to act as its agent for copyright infringement notification. BayTSP's search of the protocol listed below has detected infringements of Paramount's copyright interests on your IP addresses as detailed in the attached report.

BayTSP has reasonable good faith belief that use for the material in the manner complained of in the attached report is not authorized by Paramount, its agents, or the law. The information provided herein is accurate to the best of our knowledge. Therefore, this letter is an official notification under provisions of section 512(c) of the U.S. Digital Millennium Copyright Act to effect removal of the detected infringement listed in the attached report. The attached documentation specifies the exact location of the infringement. The number.

We hereby request that you immediately remove or block access to the infringing material, as specified in the copyright laws, and insure the user refrains from using or sharing with others Paramount's materials in the future.

Please send us a prompt response indicating the actions you have taken to resolve this matter. Please reference the Notice ID number above in your response.

Nothing in this letter shall serve as a waiver of any rights or remedies of Paramount with respect to the alleged infringement, all of which are expressly reserved. Should you need to contact me, I may be reached at the following address:

[sender name]
[sender title]
BayTSP, Inc.
[sender address]
Los Gatos, CA

v: [phone number]
f: [fax number]
[sender's email]

 
FAQ: Questions and Answers

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Question: What is section 512 of the DMCA, and what are its various provisions?

Answer: The On-Line Copyright Infringement Liability Limitation Act (OCILLA), included as section 512 of the Digital Millennium Copyright Act (DMCA), was passed in 1998. It provides Internet Service Providers (ISPs), such as providers of DSL and dial-up Internet access, as well as other Online Service Providers (OSPs), such as search engines, with a


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Question: What does "under penalty of perjury" mean?

Answer: Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood."


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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:


  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of copying, and
  4. the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.


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Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?

Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.

If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.


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Question: How do lawyers "buy time" when a cease and desist letter is received by a client?

Answer: What a lawyer will often do to maintain the status quo is to send a response to the demand letter, within the stated time, saying something like this: We are in receipt of your letter of (date) "Please be advised that we are investigating the matter and will be in contact with you shortly." This letter ordinarily gives additional time to research the allegations, and should give you some additional time to contact a lawyer if you need to.


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Question: What does the "reservation of rights" language mean? What are they "waiving" at me?

Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.


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