Responding to a Claim
If you have received a demand notice from E C Legal, you should consider engaging lawyers to assist you to understand the basis of our client’s claim and the options available to you to deal with it.
E C Legal provides a list of questions that copyright infringers may ask and the answers that we usually give to those questions. These answers should not be relied upon as legal advice and all parties should make their own enquiries before deciding on an appropriate course of action.
Why did I receive a letter of demand?
You have received a letter of demand because we believe that a website for which you appear to be responsible includes content which is the intellectual property of our client.
Software tools available to E C Legal have detected a copy of our client’s text on your website. As we found evidence that our client’s site contained this text before your site, it appears likely that you copied it from our client or from somewhere else that had also copied it from our client.
If this allegation is correct, our client may have a claim against you for copyright infringement.
What should I do?
Please deal with us to resolve our client’s claim.
If you have a defence, tell us about it.
Our usual terms of engagement give us a broad authority to negotiate a settlement on our client’s behalf.
The settlement will almost always require payment of money. Any settlement agreement will usually include a perpetual license to continue to use the text provided there is an acknowledgment added to the text on your site.
Our letter of demand requires a prompt response. Doing nothing may end up costing far more than what might be paid in a settlement agreement.
You should consider getting some legal advice. But beware. Legal advice – especially specialist intellectual property litigation advice – is expensive, and often our settlement amounts are quite small. Do not allow the cost of the advice to exceed the amount of our client’s settlement offer. Try to get a cost estimate from your legal advisor or a cost cap.
How is a fair settlement amount calculated?
Our usual method is that the settlement amount is calculated as the amount of copying from our client’s site (as a percentage) times the value per day of revenue generated on our client’s or your site (whichever is the larger) times the number of days the copying has gone on. This is a simple formula, easily calculable from reliable third party sites such as Alexa™, the WaybackMachine™ and Google™.
If you do not believe this method is appropriate our client will consider any reasonable proposal you make.
Why should an infringer pay?
There are technical and legal reasons to reach a settlement.
Technical reasons include the copyright owner having the following options available:
- reporting the non-paying infringer to their web host;
- reporting non-paying infringer to their web host’s ISP;
- reporting non-paying infringer to the major search engines – Google and Bing;
- reporting non-paying infringer publically via Twitter and RSS feeds;
- reporting non-paying infringer to IP DNSBLs (“Blacklists”).
If the copyright owner made the reports above, the following outcomes may result:
- the non-paying infringer’s site may become inaccessible to all or parts of the internet;
- the non-paying infringer’s emails may fail to be delivered to some or all recipients;
- the non-paying infringer’s domain and or IP address may be publically listed on known internet trouble spot lists which may result in service degradation from virus scanners and other security software;
- hosting provider’s around the world may block these “trouble spots” from their routing tables.
The legal reasons for coming to a settlement is to avoid the possibility of legal action being started which may result in a finding of breach of copyright and an award of damages and costs. We would expect that any agreed settlement amount would be less than an award of damages and costs following successful legal action.
Are there reasons why I should not pay?
Yes and again we advise obtaining professional advice.
Defences to our clients claim include:
- you are not responsible for the infringing web site;
- you were actually the earlier author;
- the copied material came from another source that was authorised;
- our client authorised your use of the material;
- the material copied is not sufficiently distinctive;
- the material copied is insubstantial;
- the material was not copied but coincidentally created;
- fair use and other statutory defences under the law such as exceptions for libraries, private study, legitimate comment or criticism apply in this case
If you believe any of the above defences apply to you, please advise us in writing immediately and provide proof of what you advise.
Note that the following circumstances are unlikely to provide a defence to our client’s claims:
- the material was copied by an employee/contractor. Our investigations show that you are the appropriate entity to be contacting for this copyright infringement. You can claim compensation against your designers or other parties if they have included unauthorised material in your website without your knowledge. Unless you can prove that you were not the registered owner of the named site at any of the relevant times, you are like to be the responsible party;
- the domain owner did not know he had copied material. Breach of copyright is strict liability – it does not require prior knowledge by the publisher.
- the domain owner has never heard of our client’s site. In effect, this defence says “we may have copied, but not from the site you say we copied”. This is not a defence, so long as our client can prove he was the author of the earliest published version. You may have copied from someone else, but he copied from us;
- the domain owner has no money and can’t afford to pay a settlement amount. We understand many recipients of our letters are small businesses or sole traders from varying parts of the world, some with lower living standards than others. We also know that some of our infringement notices are directed to people in poor financial circumstances. Where this is the case, we may accept settlement offers of less than the expected amount or payable over time;
- the material has already been removed. This reduces the amount of our client’s claim but does not eliminate it;
- the domain has already been vacated. This reduces the amount of our client’s claim but does not eliminate it.
How do I know that you are legally authorized act on behalf of the copyright owner?
As Australian Legal Practitioners, we have conduct obligations which include not representing that we are authorised to act when we are not.
It is our usual practice to obtain a signed authority from our client before commencing action including sending the demand letter to you.
If you contact our office and come to an agreement about a settlement amount, we will, at your request, provide a signed authority before finalising a written settlement agreement.
What if I can’t afford to pay right now?
We can tailor a settlement arrangement to suit your circumstances.
Contact us immediately to discuss.
I received a letter of demand on behalf of one copyright owner – I suspect I could be getting more from other copyright owners – can you tell me if more notices are on the way?
Sometimes, when we have been joined by other copyright owners that affect you, we will know this information and can tell you. Normally, however, we do not know this and you would just have to wait and see what eventuates. We only represent a tiny fraction of all copyright owners. We do have a tool available which lists all of a site’s infringements for audit purposes – this might suit you. You can then remove material before it is detected. This audit service is available for a fee which depends on the amount of text and number of pages on a site.
Please contact us to discuss.
Can I keep using the material after I pay the settlement amount?
Probably. Our settlement agreement will deal with ongoing use of the copyright material.