FAQ: Questions and Answers

[back to notice text] 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. [back to notice text] Question: What is the scope of copyright in sound recordings? Answer: The copyright holder in a sound recording has the exclusive right to copy it, to create derivative works based on it, to distribute copies to the public, and "to perform the copyrighted work publicly by means of a digital audio transmission." This last right covers digital transmissions between distant places, like webcasts and digital satellite radio. Note that, unlike the copyright holder in a musical work, the copyright holder in a sound recording does not have the general exclusive right to perform the work publicly. This means that when, for example, a radio station or a dance club plays a song, they must acquire a license from the owner of the copyright in the musical work (usually the composer or her agent), but not from the owner of the copyright in the sound recording (usually the record company). Federal copyright protection does not extend to sound recordings created before February 15, 1972. However, these recordings are often covered by various state statutory and common law copyrights. [back to notice text] Question: What is "willful infringement"? Answer: Willful infringement occurs when the infringer knows that the material they are copying is protected by copyright. In many cases, the penalties for copyright infringement are greater if the infringement is willful. [back to notice text] Question: What does it mean to "publicly perform" a work? Answer: According to the Copyright Act, 17 U.S.C. 101, "public performance" means: to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. [back to notice text] Question: Are mash-ups illegal? Answer: A "mash-up" is created when an artist takes sound recordings of two different preexisting songs and combines elements from each to form a new work. Of course, not all mash-ups are illegal; if the artist has permission from the owners of the sound recordings and musical works for both songs, the mash-up is clearly legal. Without permission from music publishers and record companies, mash-ups will often infringe, among other things, the copyright owner's exclusive right to "prepare derivative works". However, in some cases, a court could find that the mash-up is a parody or other fair use of one or both works, reducing or eliminating infringement liability. [back to notice text] Question: What is unfair competition? Answer: "Unfair competition" covers a wide range of kinds of unjust business behavior---so many kinds, in fact, that it is impossible to give one simple general definition. In essence, unfair competition means trademark infringement or false advertising to confuse the public. In most states, only commercial competitors can be engaged in "unfair competition." [back to notice text] Question: What is "unjust enrichment"? Answer: Unjust enrichment occurs when one party receives money or other value that they have not earned at the expense of another party. The party who suffered from the windfall can sue to recover their losses. [back to notice text] Question: What is a preliminary injunction? Answer: An order by the court requiring the defendant to do or refrain from doing some action pending a full trial on the merits of the lawsuit. Sometimes in intellectual property litigation, the property owner, soon after filing the complaint, will make a motion for a preliminary injunction requiring the defendant to stop doing those things the plaintiff alleges are infringing the plaintiff's intellectual property rights. [back to notice text] Question: What are "punitive damages"? Answer: Punitive damages are damages intended to punish and deter similar wrongful conduct rather than merely compensate for losses suffered by the plaintiff (called compensatory damages). Punitive damages are authorized when the defendant acted with recklessness, malice, or deceit. As for the amount of punitive damages awardable, the Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between the harm and the award; and (3) the difference between the award and the civil penalties authorized in comparable cases." BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). [back to notice text] 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. [back to notice text] Question: Must I disclose anyone else's name or address in response to a cease-and-desist letter? Answer: No. Without a court order, a copyright holder cannot force you to disclose the name or contact information of anyone. If the sender of the letter does file suit, they may be able to get a court order forcing you to identify other people involved in the alleged infringement. [back to notice text] Question: This letter says I have to pay them some money right away. Do I? Answer: Unless a court has ordered you to pay them or you've made a promise to pay that you haven't fulfilled, you don't have to obey a demand for money contained in a cease-and-desist letter. Sometimes, cease-and-desist letters include demands for some sum of money, in return for which the writer agrees not to sue and will "consider the matter closed". These are offers to enter into a contract to settle the matter, not notice of some preexisting obligation to pay. [back to notice text] 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.

Topic maintained by George Washington University Law School