Amish.net/Copyright Infringement -- Chilling Effects Clearinghouse

I am writing to you on behalf of [redacted], President, Amish.Net The Company and Las Kelly Enterprises, Huntington Beach, California, and [redacted], President, America's Amish County Publications and DYP, Inc. Berlin, Ohio.

It has come to our attention that you are the owner, web master and/or marketing specialist for the websites (witheld for privacy reasons) and additional websites in the (witheld for privacy reasons) area. We are now aware of your use in these websites, starting in approximately July 2001, of copyright registered text. This text first appeared in America's Amish Country (America's Amish County Publications, Berlin, Ohio,1992; Co-authors, [redacted]) and subsequently in America's Amish Country II ( America's Amish Country Publications, Berlin, Ohio, 2000; Co-authors, [redacted]). The same text was licensed for use in March 2000 at Amish.Net The Website's Amish Lifestyle Section (witheld for privacy reasons). Each of the appearances of this text in these books under the Amish Lifestyle section, has been copyrighted registered by [redacted], with the Library of Congress, Washington, DC, in accordance with US Copyright Laws.

Amish.Net The Company has also registered this text, which appears at Amish.Net The Website (witheld for privacy reasons) on behalf of [redacted].

Additionally, we are aware of your use of text, Visiting The Amish, at (http://witheld for privacy reasons), which appears at Amish.net The Website at (witheld for privacy reasons)This text is the property of Amish.Net the Company and is also copyright registered by [redacted], President, Amish.Net The Company.

Terms of Use have been posted at Amish.Net The Website since its launch on March 1, 2000. The TOS includes the following copyright notice:

Copyright Notice
All content on this website, including the text, graphics, photographs, data and images is the property of Amish.Net, unless otherwise identified or owned by thrid-party websites reached through links provided herein. ANY USE OF SUCH CONTENT WITHOUT THE PRIOR EXPRESS WRITTEN PERMISSION OF THE OWNER(S), INCLUDING, BUT NOT LIMITED TO PRODUCTION, MODIFICATION, DISTRIBUTION, TRANSMISSION, REPUBLICATION, STORAGE OR DISPLAY, IS STRCTLY PROHIBITED UNDER U.S. LAW.

The main text content of the Amish Lifestyle Section at Amish.Net The Website was developed and based on years of research and the publication of two authorative and widely acclaimed books about the Amish by [redacted]. All other text elements of Amish.Net The Website, to include the advertising program and Directory, were written and subsequently copyright registered by [redacted] as noted above.

The text throught Amish.Net The Website was carefully crafted by a web promotion specialist and Kelly to achieve the highest ratings popssible in search engines. Indeed, Amish.Net The Website ranks within the top five, usually the top listing, in most of the major search engines for common search terms for things related to the Amish lifestyle and Amish tourism in the various geographicregions in which the Amish live, to include the State of (witheld for privacy reasons) and the (witheld for privacy reasons).

The finished product of Amish.Net The Website, to include developement of branding elements and operational expenses, have cost more than $35,000 over the past two years. This figure does not include the thousands of hours spent in developing the exclusive database for the Directory that provides information about America's Amish Country to include (witheld for privacy reasons).

While reviewing (witheld for privacy reasons), we have noticed that this is a duplication of the text found at (witheld for privacy reasons) with a minor addition to serve your own needs. Your use of text at (witheld for privacy reasons) was modified to fit your local tourism needs wherin you state: Since the early 1700s when they first arrived in Michigan, Amish have been living a simple lifestyle in accordance with their religious beliefs. You duplicated the text, verbatim, to include the and the bottom of the page directionals to the next or previous pages at (witheld for privacy reasons), and (witheld for privacy reasons).

Your use at (witheld for privacy reasons), however, deviates in that you ignored the copyright management information placed there by [redacted]. This copyright management information reads as follows:Copyright Information:All text and photography are Copyrighted by [redacted]. America's Amish Country was first published in 1992 by Amierca's Amish Country Publications, Berlin, Ohio. Use herein by Amish.Net has been granted by [redacted]. Text and photography may not be copied or used in any website, book or magazine, with the exception of brief quotations in critical articles or reviews.

This is a very clear indication that you deliberately placed the material there, knowing that you did not have permission to do so, and you deliberately removed the copyright management information from the surrounding text.

At this page, (witheld for privacy reasons), you used substantially similar text as the text found at (witheld for privacy reasons).

Based on the size and positioning of your link at the front page of (witheld for privacy reasons) at (witheld for privacy reasons), Amish Information, it is clear that your use of the copyright registered text owned by [redacted] and/or [redacted] is a major part of your stated commercial campaign to attract visitors to (witheld for privacy reasons) are and in particular to (witheld for privacy reasons) where the Amish reside ("For a more serene taste of life in (witheld for privacy reasons) enjoy our Amish farms and communities") and your commercial activities for personal finincial gain, which include building websites and/or listing tourism businesses, (witheld for privacy reasons) in the (witheld for privacy reasons) area and in particular (witheld for privacy reasons).

It is clear that you have no "fair use" defense since your purpose in using the copyright registered information was purely for your own finincial gain as evidenced by your statements at (witheld for privacy reasons).

We have also located the use of the above referenced copyright registered text at the following URLs: (witheld for privacy reasons)

We located use of our copyright registered material by (witheld for privacy reasons) at Google.com based on a search for common Amish lifestyle terms. We also located it at Lycos.com and, at Yahoo.com, (witheld for privacy reasons) ranked only second to Amish.Net in search results for Amish life style.

It appears clear to us, and based on our extensive review of (witheld for privacy reasons), that (witheld for privacy reasons) uses copyright registered material and website development that has been produced by [redacted] as a significant part of a regional branding and advertising campaign "developed" by you for your own personal financial gain.

The unauthorized use of text violates United States copyright laws, including but not limited to, 17 USC 501 et. seq. which imposes liability for copyright infringement and sets maximum statutory damages of $150,000 for each act of infringement. Such use may also violate the Digital Millenium Copyright Act, 17 USC 1203, that imposes a statutory penalty of up to $25,000 for removal of copyright management information that is associated with procected work.

No one from (witheld for privacy reasons) has approached [redacted] to licence any use of the copyrighted text or website development of Amish.Net The Website despite numerous Contact postings found therein.

Had [redacted] given permission to use the copyright registered materials or business model in a website such as (witheld for privacy reasons), which would have been highly unlikely, the licence fee would have been at least $75,000 for a customizable Web reprint for two years with the right of attribution. Since you never sought permission, but have used the material in violation of the rights of [redacted], and without any attribution to the author(s), we believe taht a fair settlement of this dispute should be made.

Therefore, demand is hereby made for immediate payemnt of $50,000 in exchange for a non-exclusive royalty free one-time licence agreement. This offer represents a fair compromise of the damage claim considering the nature of the violations discovered so far, the widespread use on the Net and listings at the major search engines.

Please remit $50,000 payable to Amish.Net The Company and send to the above address not later than Wednesday, March 13, 2002.

FAQ: Questions and Answers

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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.

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Question: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

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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:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
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: What is fair use?

Answer: Fair use is an affirmative defense that can be raised by an individual who is sued for copyright infringement (or an individual against whom a claim of copyright infringement is alleged). See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted, notwithstanding the copyright owner's exclusive rights in her work.

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Question: What types of uses does the fair use doctrine protect?

Answer: The language used by Congress in Title 17, Section 107 specifically lists

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Question: Do I need permission from the copyright holder to make fair use?

Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).

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Question: What are the possible penalties for copyright infringement?

Answer: Under the Copyright Act, penalties for copyright infringement can include:

an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works
impounding or destruction of infringing copies
damages -- either actual damages and the infringer's profits, or statutory damages
costs and attorney's fees

A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)

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Question: What are statutory damages?

Answer: A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)

A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504)

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Question: What can the copyright holder recover in damages?

Answer: To sue in federal court, the copyright holder must first federally register the copyright.

If the copyright holder federally registered the copyright prior to the infringement, he or she can receive attorney fees and statutory damages (between $750-$30,000; can be as high as $150,000 if the court finds that infringement was willful).

If the copyright holder registers after the infringement occurred, he or she is only entitled to profits or actual damages.

Note: the copyright holder can elect to receive actual damages or profits instead of statutory damages, but they will often receive more by choosing to receive statutory damages.

Amish.net/Copyright Infringement

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