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Notice of COPYRIGHT INFRINGEMENT

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payorgetsued

Junior Member
What is the name of your state? Pennsylvania

I received this notice yesterday via email:

RE: NOTICE OF COPYRIGHT INFRINGEMENT

Let me introduce myself. I am the Infringement & Anti-Piracy Paralegal for Cengage Learning and I am responsible, along with others, for protecting the copyright interests of our company. Cengage Learning has recently discovered that you are illegally engaged in selling material that infringes Cengage Learning’s copyright through the eBay auction site.



The eBay user agreement, to which you have agreed, states that you, as a Seller, may not “violate any laws, third party rights, or …policies such as the Prohibited and Restricted Items policies.” Moreover, under the Copyright Act, the owner of the copyright in a work has the exclusive rights to reproduce and distribute the copyrighted work to the public by sale or other transfer. 17 U.S.C. §§106(1) and (3). Notwithstanding the law, and your eBay User Agreement, on September 20th you offered for sale illegal copies of the following Cengage Learning product(s):


Key Legal Principles



We encourage you to take legal advice at this stage. However, it may be useful to explain certain aspects of copyright law here.



1. What damages can a court award in a copyright infringement case?





Cengage Learning regularly registers copyrights in the works it publishes. Accordingly, it may elect to recover in litigation, for each work infringed, either actual damages, or statutory damages of “not less than $750.00 or more than $30,000.00 as the court considers just.” 17 U.S.C.§504(c)(1). This amount may be increased to $150,000.00 per work if the infringement is willful. 17 U.S.C.§504(c)(2). Blatant piracy will almost always be deemed “willful.”



2. What if I am sued and choose to ignore it?



If you are sued by Cengage Learning, you will need to hire a lawyer to defend the case, or defend the case yourself. If you do neither, Cengage Learning will ask the court to enter a “default judgment” in the maximum amount of damages allowed by law. Such a judgment would then be enforced against you by, e.g., attaching your bank accounts and other assets.



3. Who pays attorneys’ fees?



Under the Copyright Act, the court may, in its discretion, award Cengage Learning its costs and attorney’s fees in bringing this action. 17 U.S.C. §505. See Basic Books, Inc. v Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). In all events, you will be liable for your own costs and fees, which conservatively could exceed $40,000.00 through trial, for a case that you will lose.


Acceptable Resolutions



Cengage Learning is willing to settle this claim early if we can avoid the inconvenience of a lawsuit. This can be done only if you respond promptly to this letter by agreeing to:



1. Cease making, distributing, and offering for sale, unauthorized copies of our material;



2. Destroy any and all illegal copies of our material presently in your possession or control;



3. Agree that if you infringe upon Cengage Learning’s copyrights in the future, you consent to the entry of damages against you in the amount of $5,000 per copy; and



4. Pay to Cengage Learning the sum of $250 as compensation for your infringement. Payment must be made in the form of a cashiers check payable to “Cengage Learning.”





Please sign and return one copy of this letter to my attention at the address below within 10 business days of your receipt thereof, along with the specified payment, as evidence of your agreement to the above. This offer expires after 10 business days, at which time we reserve the right to commence a lawsuit without further notice.





ACCEPTED AND AGREED:







[Name] [Date]


I bought solutions manual (pdf form) online for sale at www.half.com for $5 each years back and decided to post them for sale.

I opened the solutions manuals and it has nothing containing a copyright nor the author who created it nor a digital signature. Now granted maybe they came from a CD rom for instructors (but thats just speculation).

I am in no position to pay the $250.

Would a big time publisher take me to court for a solution manual? I am a student. Isn't that bad publicity.

They could of asked for the "actual damage"(the profit I made), but elected an amount which is not legally covered by the law: $250 isn't the actual damage and $250 isn't the "statutory damages" ($750 up to $30000). So since amount isn't covered by the law is it legit?

Lastly, I read something about gray and black market. what makes the copy "authorized" or "unauthorized"?

Addition info: I called the publisher (Cengage) since I kept getting the paralegal email. They told me to contact the same person who sent me the email so its legit.

I can't afford to seek professional legal advice.

Any "constructive" advice would be appreciated. Thank you
 


TomD1974

Member
Gee, I hope you find this "constructive", payorgetsued, because you seem to come here crying about your misdeed and the fact that the victim had the nerve to not like what you did...


If you copied someone's original work and held your own little fire sale on ebay, you have a problem. Didn't you think it was odd that you were the only one to come up with that brilliant idea?

It may mean something to YOU that you are only a "student", but one thing you'll learn in the real world is that when someone has a stone cold lock of a copyright infringement case on you, and you can settle it for $250, you think hard about doing it.

But hey - you can always take your chances, too. Maybe they will drop this. Or not.

They can settle for 50 cents if they elect to do so. But if you'd like, you could ask them to bump it up to the statutory limit to make it more "legitimate."

As for it being "bad publicity", I agree - you should call the local news and get a reporter over to your place and describe what you did, show their mean letter to the camera, and try to get this thing elevated to the US Supreme Court where it belongs. The Plaintiff will surely back off then.
 

payorgetsued

Junior Member
Disgruntle member: TomD1974

I came here being polite, seeking advice and I got darts thrown at me. All I did was state my dilemma and ask a series a questions.

Mr. D you are a very wise man at the age of 33. Please share with us your credentials. You seem to be very adamant about your position on this issue. Why is it so hard for people to show compassion? Why is it so hard for people to get off their high horse and put on the poor man's set of shade and see his perspective?

You know the world is coming to an end when people who failed the bar exam and won't even get hired as a paralegal, much less a janitor, come like a troll of a bridge patrolling forums looking for people to attack. Mr. D may I offer some FreeAdvice to you, when you offer advice it should be pragmatic not bias and in the best interest of the party involve.

Once again, I am humbly asking for advice on the above matter. Thanks for your assistance and your time.
 

divgradcurl

Senior Member
I bought solutions manual (pdf form) online for sale at www.half.com for $5 each years back and decided to post them for sale.

I opened the solutions manuals and it has nothing containing a copyright nor the author who created it nor a digital signature. Now granted maybe they came from a CD rom for instructors (but thats just speculation).
Well, if you didn't create the manual yourself, somebody must have -- didn't you stop to think that maybe the creator of the book might want to be the one to profit from it?

I am in no position to pay the $250.
Okay.

Would a big time publisher take me to court for a solution manual? I am a student. Isn't that bad publicity.
Don't think that the "publicity" angle is going to protect you -- the slashdot crowd hasn't been able to stop the RIAA with their "bad publicity" arguments...

But the answer is "maybe." Is it worth it financially? No, of course not. But it might be worth it to them to send a message to other would-be infringers. But nobody knows what they might do.

Here's the thing, though. If you can't pay the $250 to settle this, then you certainly can't afford an attorney -- what are you going to do if they DO sue you?

They could of asked for the "actual damage"(the profit I made), but elected an amount which is not legally covered by the law: $250 isn't the actual damage and $250 isn't the "statutory damages" ($750 up to $30000). So since amount isn't covered by the law is it legit?
Of course it's legit. They could ask for ANYTHING at this point -- it doesn't matter what they are or are not legally entitled to at this point. This is a negotiation -- they say "pay me $250 or we'll see you in court." You can decide whether or not to pay the $250 or risk having a lawsuit filed against you. It's just a negotiation, like buying a car. The fact that they are asking for so little just means that they want to make it "sting" a little; they would rather settle than fight, so they pick a number that hurts a bit, but is doable for most people.

You are free to ignore it, of course. You are not free to ignore a summons from the court.

Lastly, I read something about gray and black market. what makes the copy "authorized" or "unauthorized"?
A "grey market" item is a LEGAL copy that is sold outside of the normal distribution channels. Typically, this occurs when a LEGAL copy is purchased in, say, the UK, then resold in the US. The UK version is not usually sold in the US, but since it is a LEGAL copy, it is a grey market copy. It is legal to resell grey market goods.

A "black market" good is an ILLEGAL copy. It is NEVER legal to resell a black market good.

Since you made copies without permission from the copyright holder, your copies are ILLEGAL and are black market products.

Addition info: I called the publisher (Cengage) since I kept getting the paralegal email. They told me to contact the same person who sent me the email so its legit.
It's quite common to have a paralegal handle routine correspondence in a law firm.

I hope this answers your questions. You really should do whatever it takes to gather up $250 and make this go away now. The statute of limitations on copyright infringement is 6 years -- you don't want to finish school (I assume you are a student) and get into a career making money, and then have the publishers find out and then file a lawsuit -- once you have an income, and perhaps assets, the publisher is less likely to be willing to settle for $250...
 

payorgetsued

Junior Member
divgradcurl: Finally some pragmatic unbia advice

divgradcurl,

Thank you for your advice. You're right a big publisher doesn't really care about the $250, that's crumbs to them. And that's why they are allowing a paralegal to handle the matter. They just want to send me a message. And to make sure I hear them, slapped on a fee that the average working person should be able to afford.

I still don't know how I am going to pay for it, however, the ramifications aren't worth it. Thanks again.

Any advice of similar situations or how to beat it will be appreciated.
 

TomD1974

Member
I came here being polite, seeking advice and I got darts thrown at me. All I did was state my dilemma and ask a series a questions.

Mr. D you are a very wise man at the age of 33. Please share with us your credentials. You seem to be very adamant about your position on this issue. Why is it so hard for people to show compassion? Why is it so hard for people to get off their high horse and put on the poor man's set of shade and see his perspective?

You know the world is coming to an end when people who failed the bar exam and won't even get hired as a paralegal, much less a janitor, come like a troll of a bridge patrolling forums looking for people to attack. Mr. D may I offer some FreeAdvice to you, when you offer advice it should be pragmatic not bias and in the best interest of the party involve.

Once again, I am humbly asking for advice on the above matter. Thanks for your assistance and your time.
I hope that divgradcurl's advice was helpful. It was identical to mine but given in the vein that a poor student like yourself could handle, and I apologize for being so blunt. But let's agree -- If you would have told Dad about this, he would have done the same thing.

BTW, I wonder why someone, when seeing a numeral in a screen name, would assume that it must be a "birth date". See, this type of reasoning ability is what has gotten you into this situation. For 250 bucks, you can get out. This time.
 

divgradcurl

Senior Member
Isn't this extortion? The publishers asking for money...
The OP essentially admitted to copyright infringement. If the OP resisted paying them now, the copyright holder would likely file suit -- and then the OP would be liable for much, much more than $250. This isn't extortion -- the copyright holder is doing the OP a favor.
 

LinxUs

Member
RIAA similar case

I invite the discussion because there was a defendant that filed a counterclaim lawsuit agasint the RIAA for extortion, conspiracy, unlawful consumer debt, etc.

However, I think the argue in that case is that there was no evidence (other than a third-party download that a judge ruled in a separate case as trespass, I believe)...

If it wasn't understood, I meant extortion on the part of the publishers against the starter of the thread
 

LinxUs

Member
Credible reference

I didn't get this in my last post,

Fair Debt Collection Practices Act 15 U.S.C. § 1692a et seq. and Fla. Stat. § 559.72 et seq
 

FlyingRon

Senior Member
I invite the discussion because there was a defendant that filed a counterclaim lawsuit agasint the RIAA for extortion, conspiracy, unlawful consumer debt, etc.

However, I think the argue in that case is that there was no evidence (other than a third-party download that a judge ruled in a separate case as trespass, I believe)...

If it wasn't understood, I meant extortion on the part of the publishers against the starter of the thread
I didn't get this in my last post,

Fair Debt Collection Practices Act 15 U.S.C. § 1692a et seq. and Fla. Stat. § 559.72 et seq
Stay over in your own thread. Nothing you are blathering about has antyhing to do with this thread.
 

LinxUs

Member
arguement

what i am argueing has nothing to do with the other thread i have open (to which you responded to in regards to registration of the copyright claim, no offer of settlements or resolutions have anything to do with that thread). payorgetsues' case has little to do with me, if any. i thought it was interesting as it resembles the RIAA cases filed. my arguments are purely reflective are those cases filed to and their arguments (where some have prevailed) which are similar (or possibly going to help payorgetsued).

payorgetsues says an acceptable resolution presented by Cengenge Learning is

4. Pay to Cengage Learning the sum of $250 as compensation for your infringement. Payment must be made in the form of a cashiers check payable to “Cengage Learning."

In a somewhat similar settlement, the RIAA asks for $3,000 to settle the case before court
check :http://recordingindustryvspeople.blogspot.com/2007/01/how-riaa-litigation-process-works.html

I am argueing that it is similar to UMG v. Del Cid and counter claim Del Cid v. UMG cases that are alleging extortion, conspiracy, unfair practices, etc.

Also, they must prove something was downloaded based on UMG v. Lindor, "[a]t trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff’s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.".

Since the letter to payorgetsued does not show direct infringement, it offers through its "settlement" to agree to that they infringed the item and to stop a lawsuit if they write a check to them for $250. Since their actual damages for such an incident is unknown, it is probably less than the $250.

my only argument is that this is strikingly similar to the RIAA and perhaps the publishers are taking page from them.

All my references to RIAA and their cases were found from: http://recordingindustryvspeople.blogspot.com/2007/01/how-riaa-litigation-process-works.html
 

didntsellit

Junior Member
Same Letter

I received the same letter, but I never sold the item in question. I posted it and within a day, ebay removed the listing. I fear that signing the statement included will be an admission of having sold the item. If I sign the statement and pay the money, is there any way that such an admission could hurt me? If I do not pay, is it likely that I will be sued, considering that I did not sell or give away anything copyrighted, but only offered it for sale for a few hours?
-Thanks
 

divgradcurl

Senior Member
Also, they must prove something was downloaded based on UMG v. Lindor, "[a]t trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff’s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.".
How does this statement support your assertion that there must be a "download?"

Since the letter to payorgetsued does not show direct infringement, it offers through its "settlement" to agree to that they infringed the item and to stop a lawsuit if they write a check to them for $250. Since their actual damages for such an incident is unknown, it is probably less than the $250.
Or they could be higher. That's the point -- they are unknown. They are suggesting the $250 would be enough for them to forget about it -- or they could decide to go ahead and see what their damages ACTUALLY are, which will certainly cause the OP more in legal defense costs than $250.
 

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