thanks for your help guys, i guess ill just pay the fee. The email seems pretty legit.
Cengage Learning
33228 W. 12 Mile Rd.
P.O. Box 180
Farmington Hills, MI 48334
Cengage Learning - Learning solutions, training and educational publishing
VIA E-MAIL AND FIRST CLASS MAIL
May 1, 2009
RE: NOTICE OF COPYRIGHT INFRINGEMENT
Dear Mr. Lam:
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 April 29th you offered for sale illegal copies of the following Cengage Learning product(s):
Organic Chemistry by John McMurray.
Solutions Manual for Organic Chemistry by John McMurray.
Calculus: Early Transcendentals by James Stewart.
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 $400 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.
