A great way to stop copyright infringement in its tracks is to send a cease and desist letter to the infringing party. If done right, and under appropriate circumstances, a cease and desist letter can avoid any further legal action.
Any cease and desist letter should maintain a moderate tone, so as not to overreach your claim or overly antagonize the alleged infringer. Specifically, the letter should:
- Identify the copyright owner;
- Describe the infringing conduct;
- Demand that the infringing conduct cease at once;
- Demand, if applicable, an accounting on the copies produced or sold and gross profits realized; and
- Advise of the client’s intention to pursue available remedies, including preliminary remedies, if that is the client’s intention, at the earliest possible date.
Make sure to carefully draft this letter and be sure it is completely accurate; remember, it will be an exhibit either to motion papers or at trial.
Of course, it is not always appropriate to send a cease and desist letter. For example, if the infringer has no substantial ties to the community, notification of the claim of infringement may result in the disappearance of the infringer and the infringing work. This is a common problem in piracy cases. When facing this problem, consider discussing the matter with the local United States Attorney’s Office before serving a letter.
Also, a cease and desist letter may result in you being sued in a declaratory relief action brought by the claimed infringer in the infringer’s favored forum. Take, for example, the declaratory relief action brought by Lamebook.com, which filed the action after receiving a cease and desist letter (.pdf) from Facebook.com’s attorneys. In that instance, it didn’t take long for Facebook to make good on its threat of a copyright infringement suit (.pdf).
On cease and desist letters generally, including a sample form letter, go to California Business Litigation §§7.86-7.87A. This book also covers copyright infringement actions. On copyright issues in the Internet world, check out Internet Law and Practice in California, chap 1.
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