I bought a hard disk and it came with adobe light room 5 software free. The portable hard disk was in a separate retail package and the software was present in the box. I did not have a use for the software, so I sold it in ebay. The software was bought by an undercover agent of adobe and Pham & Johnson sent me a certified letter stating that I have infringed copyright of adobe and I need to pay $15000 for them to not sue me. The adobe software had a label stating not to be sold separately. I bought the hard disk for $109 and sold the software for $71. Kindly help I dint know this is illegal.
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Adobe pham & johnson
- Thread starter rk256
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quincy
Senior Member
What is the name of your state, rk256, or, if not in the US, what is the name of your country?
quincy
Senior Member
Thank you for providing your state name, rk256.
Because you received a high settlement demand and are being threatened with an infringement lawsuit if you do not pay this amount, you really need to sit down with an IP attorney in your area for a personal review of the letter you received. You should go over with this attorney the possible defenses you might have to an infringement action before you respond to the letter or pay any amount demanded.
First, not knowing you were infringing on someone's rights is not a defense to infringement. This can only work to mitigate (lesson) damages in the event you are sued.
What could be a legitimate defense to your sale of the software is the "first sale doctrine," which allows for the purchaser of a legal copy of a copyrighted work to sell the work to someone else. There is some case law that could potentially support this defense for you, even though you sold the individual components of a bundled package instead of the package as a whole. Unfortunately for you, there are also cases that have determined that separating a single copyrighted work and selling the individual parts of the work is copyright infringement.
The attorney you see can advise you on how to respond to the notice of infringement that you received and the attorney can best guide you on your wisest course of action.
I will provide links to a few of the cases, so you can read the court's decisions, but I don't have links to them on hand right now.
Actually, here is one (Softman Products Co. LLC v. Adobe Systems, Inc, 171 F.Supp.2d 1075, C.D. Cal. 2001): http://cryptome.org/softman-v-adobe.htm
quincy
Senior Member
In the Softman Products, Inc. case I cited, the Court determined that selling the separate parts of the whole of a computer package fell under the First Sale Doctrine and was not infringing on Adobe's copyrights or trademark rights.
Another case to refer to that came to a similar decision is Annie Lee v. Deck the Walls, Inc., 925 F.Supp. 576 (N.D. Ill. 1996), a case where notecards were purchased and mounted on tiles and sold. The Court determined these were not derivative works that infringed on the rights of the notecard copyright holder but, rather, fell under the First Sale Doctrine. http://cyber.law.harvard.edu/people/tfisher/IP/1997 Lee Abridged.pdf
A different decision, however, was reached in a case not unlike Annie Lee, where prints from an art book were removed, framed and sold separately. In Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (1988), the Court held the First Sale Doctrine did not apply and the selling of the individual prints was infringement (http://openjurist.org/856/f2d/1341/).
I have no idea what a court would decide on your sale of the software. Again, you really need to see an attorney in your area for a personal review and advice and direction. Good luck.
Another case to refer to that came to a similar decision is Annie Lee v. Deck the Walls, Inc., 925 F.Supp. 576 (N.D. Ill. 1996), a case where notecards were purchased and mounted on tiles and sold. The Court determined these were not derivative works that infringed on the rights of the notecard copyright holder but, rather, fell under the First Sale Doctrine. http://cyber.law.harvard.edu/people/tfisher/IP/1997 Lee Abridged.pdf
A different decision, however, was reached in a case not unlike Annie Lee, where prints from an art book were removed, framed and sold separately. In Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (1988), the Court held the First Sale Doctrine did not apply and the selling of the individual prints was infringement (http://openjurist.org/856/f2d/1341/).
I have no idea what a court would decide on your sale of the software. Again, you really need to see an attorney in your area for a personal review and advice and direction. Good luck.
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quincy
Senior Member
Right. Sites like eBay and YouTube regularly pull (what is claimed to be) infringing material upon notification by the rights-holder, and sellers can have their selling rights rescinded and their accounts cancelled - especially if they have had one or two similar notifications of infringement in the past.
Trademark and copyright owners commonly police online websites looking for infringers. The first action taken by a copyright or trademark holder will generally be the filing of a DMCA takedown notice and the infringed material will be removed from its location online and, depending on the rights-holder and the infringer, it can end for the infringer there. If it does, the infringer is lucky.
This is because, when you are infringe on the rights of big-name rights-holders like Adobe, it is frequently taken further. Especially if there is more than a single item being marketed illegally, the rights-owner might purchase an item from the seller to support an infringement claim, then notices of infringement are sent to the account holder with settlement demands and threats of lawsuits. Most who receive these notices will eventually settle with the rights-holder, however, and few actions will be taken as far as a trial.
I am sure that a lot of sellers are "innocent" infringers, not only unaware of the laws that govern rights-protected material but also oblivious to the fact that their goods (perhaps purchased at a garage sale or a flea market) are infringing or counterfeit. But there are enough sellers online who market infringed and counterfeit goods with regularity, knowing full-well the origin of the goods or that what they are doing is illegal, that rights-holders remain vigilant to protect their rights. The willful and intentional infringers face criminal actions in addition to the settlement demands and civil infringement actions.
quincy
Senior Member
Hmm. I noticed that both you and rk256 were private messaging each other yesterday. This was not discussed between you in your private messages? Odd.
It is rarely smart to ignore a notice of infringement and a settlement demand letter. That can be a good way to get yourself sued. Unless you are sure of your legal position and are confident you can win a lawsuit, and you have the money to support your defense, it can be smarter to review the facts with an attorney in your area and rely on his/her advice.
quincy
Senior Member
The mix of opinions you might have seen online, on what to do when you receive a notice of copyright infringement, could be due to the difference in the types of sites you have visited. If you go to "copyright troll" sites, for example, they will invariably advise visitors to ignore all copyright holders and all notices of infringement.
Ignoring the facts of a copyright infringement notice (like, for example, the litigiousness of the one claiming infringement) can be a big mistake. Adobe has sued infringers in the past and has the budget to sue again. Their history of litigation makes them more likely to file legal action against an alleged infringer if the infringer ignores the notice and an offer to settle (not that Adobe will necessarily win a suit if it goes to trial).
Most cases where there is evidence of infringement will wind up settling, and the settlement will often be a negotiated settlement. I would not recommend that anyone pay a $15,000 settlement demand without a careful review of the letter received, the infringement alleged, and all other pertinent facts. This review is best done personally by an attorney experienced in copyright infringement actions, who can address the notice with a suitable response to the copyright holder that fits the facts, and who can also work with the copyright holder if it becomes necessary to negotiate a settlement.
rk256 was on the forum at the same time you were this afternoon, ken, so I imagine he will be by again to let you know what he decided to do.
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quincy
Senior Member
I suspect rk256 will return to this thread again soon to respond.
I did some checking and the same question asked here by rk256 has been asked (perhaps by him) on other sites. I see where the advice offered has differed a bit.
The recommendations on what to do generally differ due to the qualifications and experience of those responding. Some responses I've seen are from attorneys who appear to have some experience in IP law (they recommend not ignoring infringement notices) and some responses are from attorneys who appear to have little to no experienced in IP law (they sometimes recommend a wait and see what happens - which can be costly if what happens turns out to be a lawsuit) and many responses are from various and assorted members of various and assorted forums who appear to have little to no legal knowledge or experience at all (and they offer suggestions like telling the copyright holder what they can do with their notice
). Adobe has three years from the date of infringement, or discovery of the infringement, to file suit.
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