Publishing, LLC., 409 F.Supp.2d 587 (D.
or her derivative rights retains the right to
N.J. 2006).) For example, one court held that
receive part of the total fee (often a royalty)
the law did not apply to copyright notices
from their exploitation.
placed on fabric designs. ( Textile Secrets Int’l,
EXAMPLE: Bill sel s the film rights to his
Inc. v. Ya-Ya Brand Inc. , 524 F.Supp.2d
Hussein biography to Repulsive Pictures in
1184, 1192-93 (C.D. Cal. 2007).) However,
return for $100,000 and a 5% share of the
other courts have disagreed with this view,
profits from the film. Acme Productions
and held that the statute applies to all types
releases an unauthorized film based on Bil ’s of copyright notices. For example, a court biography. Both Bill and Repulsive may sue
held that the law was violated when someone
Acme. However, because it would get most
removed a handwritten copyright notice from
of the recovery from a suit against Acme,
architectural plans and falsely claimed to
Repulsive would likely carry the ball in this
be the copyright owner of the plans. ( Fox v.
situation—that is, its attorneys would do
Hildebrand, 2009 U.S. Dist. LEXIS 60886 at
most of the work and Bill would simply join
*2, 5-8 (C.D. Cal. July 1, 2009).)
along as a plaintiff.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 295
Compromise Settlement Letter for Example 1
Felix Franklin
Editor-in-Chief
The Plagiarist’s Review
123 Copycat Lane
New York, NY 10000
Dear Mr. Franklin:
This letter embodies the terms of our settlement of the outstanding dispute
arising from publication of the article “Old Ideas In New Bottles” in the
November 20xx issue of The Plagiarist’s Review:
1. Sal y Bowles hereby retroactively grants The Plagiarist’s Review a
nonexclusive license to reprint her article “Old Ideas In New Bottles” in
its November 20xx issue.
2. The Plagiarist’s Review promises to print a prominently placed
correction in its March 20xx issue, in words approved by Sal y Bowles,
informing its readers that Sal y Bowles was the author of the article “Old
Ideas In New Bottles” that ran in the November 20xx issue and that her
name had been left off the article in error.
3. The Plagiarist’s Review also promises to publish the fol owing articles by
Sal y Bowles at its customary fee no later than December 20xx;
• an approximately 2,000-word article tentatively entitled “What to Do
If You’re Accused of Plagiarism,” and
• an article of approximately 1,500 words on the subject of marketing
freelance writing.
Sally Bowles
Sally Bowles
Date
Felix Franklin, Editor-in-Chief
Date
The Plagiarist’s Review
296 | THE COPYRIGHT HANDBOOK
Compromise Settlement Letter for Example 2
Lisa Bagatel e
President
Copycat Press
100 Grub Street
Boston, MA 10001
Dear Ms. Bagatelle:
This letter embodies the terms of our settlement of the outstanding dispute
arising from Copycat Press’s publication of the book All of French History by
Professor S.T. Cole:
1. Copycat Press will pay James McCarthy the sum of $3,000 as
compensation for the unauthorized use of material from his Ph.D.
dissertation entitled The French Chamber of Deputies, 1932–1940.
2. Copycat Press promises not to use any of James McCarthy’s work,
including material from his Ph.D. dissertation, in the future without his
authorization. This includes reprintings and new editions of All of French
History and other works.
3. James McCarthy agrees that this completely settles the matter in
dispute between James McCarthy and Copycat Press, and releases
Copycat Press from any further liability for publication of material from
The French Chamber of Deputies, 1932–1940, by Copycat Press.
James McCarthy
James McCarthy
Date
Lisa Bagatel e, President
Date
Copycat Press
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 297
What is copyright management information?
For example, it is illegal to remove the
Copyright management information includes: copyright notice from a digital work and
• the title and other information
then copy and place it online without the
identifying the work
copyright owner’s permission.
• a work’s copyright notice
Penalties for violations
• the author’s name and any other identi-
fying information about the author
Any person injured by a violation of the
• the copyright owner’s name and any
law may sue the violator for damages and
other identifying information about
seek to obtain a court injunction ordering
the owner
the violator to stop distributing the work
• any terms and conditions for use of the from which the copyright management
work, and
information was removed, altered, or falsified.
• identifying numbers or symbols on
Such a suit may be brought in addition to any
the work referring to any of the above
suit for copyright infringe ment the person
information or Internet links to such
may have against the violator.
information.
EXAMPLE: John is the author and copyright
owner of an article about online business
What can’t you do with copyright
strategies that was published on a national
management information?
magazine’s website. He discovers that
The law makes it illegal to do any of the
the article has been copied and placed
following if you know or have reasonable
on another website without his or his
grounds to know that it will induce, facili-
publisher’s permission. John’s name, the
tate, or conceal a copyright infringement:
title of the article, the publisher’s name,
• intentionally remove or alter any
and the copyright notice were removed
copyright information
from the materials before they were
• distribute, import for distribution,
placed online. John can sue the national
or publicly perform a work whose
magazine (the owners of the website)
copyright management information
for copyright infringement because the
has been removed or altered without
magazine illegal y copied and distributed
permission from the copyright owner
his article. He can also sue the magazine
or legal authority
for removing the copyright management
information from his work: his name, book
• provide false copyright management
title, copyright notice, and publisher’s name.
informatio
n, or
He can obtain damages for both violations:
• distribute or import for distribution
copyright infringement and illegal removal
a work containing false copyright
of copyright management information.
management information.
298 | THE COPYRIGHT HANDBOOK
Ordinarily, both legal claims would be joined Exceptions for fair use and
in a single lawsuit brought by John against
public domain works
the national magazine.
There are some situations where it is per-
If the suit is successful, the injured person missible to remove copyright management
may obtain from the court an award of its
information without the copyright owner’s
actual monetary damages or may instead
permission.
ask for statutory damages. Such statutory
First, the law provides that such an action
damages range from a minimum of $2,500
is permissible if permitted by law. One
to a maximum of $25,000 per violation.
case where the law may permit removing
It’s up to the court to decide how much to
copyright management information is when
award within these limits. If the defendant is material is copied on the grounds of fair a repeat offender—has violated the law two use. The fair use privilege permits people to or more times within three years—the court copy portions of copyrighted works without
may increase the damage award up to three obtaining permission from the copyright
times. The court may also award the injured owner under certain circumstances. (See
person attorneys’ fees and court costs.
Chapter 10 for a detailed discussion of fair
However, the court may reduce the
use.) In some cases it may not be possible or
damages or not award any damages at all if
convenient to include copyright management
the offender convinces the judge that he or she information when a work is copied on the was not aware and had no reason to believe
grounds of fair use—for example, when
that his or her acts constituted a violation. In
creating a parody of a copyrighted work. In
addition, the court may not award damages
this event, its removal would likely not be
against a nonprofit library, an archive, or an
considered a legal violation.
educational institution if the court finds that
Although the law doesn’t explicitly say
it was not aware and had no reason to believe so, it doesn’t apply to works that have
that its acts constituted a violation.
entered the public domain. Such works may
A person or company that willfully
be freely copied and altered in any way.
violates the law for commercial advantage
Since no one owns a public domain work,
or private financial gain may be criminally
no harm is done by removing copyright
prosecuted by the U.S. Justice Department. management information.
Penalties are steep: A first-time offender can
Final y, law enforcement, intel igence, and
be fined up to $500,000 and imprisoned
other government agencies are permitted
up to five years. But nonprofit libraries,
to alter or remove copyright management
archives, and educational institutions are
information in order to carry out lawful
not subject to criminal prosecution.
investigative, protective, information security,
or intelligence activities.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 299
Criminal Prosecutions for Infringement
Two different types of copyright
infringement can now result in criminal
Willful copyright infringement for
liability. Let’s examine both in turn.
financial gain has long been a federal crime,
punishable by imprisonment, fines, or
Wil ful infringement not for financial gain
both. However, as a practical matter this
didn’t mean much, because the federal
First, it is now a federal crime to willfully
authorities rarely bothered to prosecute
reproduce or distribute by electronic or any
copyright infringers. They just didn’t view
other means one or more copyrighted works
copyright infringement as a high-priority
with a total retail value of $1,000 or more
crime justifying allocation of limited law
within any 180-day period. This is so even
enforcement resources. This has changed,
though the infringer earns no money or
at least with regard to infringement of
other financial gain from the infringement.
computer software—an activity software
There is a sliding scale of penalties that
publishers claim costs them billions
can be imposed against people convicted of
of dollars every year. The U.S. Justice
violating this law:
Department and FBI have been actively
• If the copyrighted works involved have
going after software pirates.
a total retail value of more than $1,000
In the best-known case of its kind, the
but less than $2,500, a violator can be
U.S. Attorney attempted to prosecute an
imprisoned for up to one year or fined
MIT student who set up a computer bul etin
up to $100,000 or both.
board to dispense copyrighted software
• If the offense consists of the reproduc-
for free. The case was ultimately dismissed
tion or distribution of ten or more
because the infringer didn’t earn any money
copies of one or more copyrighted
from his actions. ( United States v. LaMacchia,
works with a total retail value of
871 F.Supp. 535 (D. Mass. 1994).)
$2,500 or more, the violator can be
In response to this defeat, Congress
imprisoned for up to three years and
has amended the copyright law to permit
fined up to $250,000. Jail time can be
criminal prosecutions of those who commit
increased to six years in the case of a
copyright infringement, even if they don’t
second offense.
do so for financial gain. Although the law,
This provision was specifically designed
called the No Electronic Theft Act, was
to apply to people who use the Internet
specifically intended to deal with software
or electronic bulletin boards to copy and
piracy on the Internet, it is so broadly
distribute pirated software, but who don’t
written it could apply to other types of
charge users for the copies or otherwise
infringement as well.
financially benefit from the infringement.
300 | THE COPYRIGHT HANDBOOK
However, this law is so broadly written
Wil ful infringement for financial gain
it could apply to others as well, even those
The criminal penalties are greater if a person
who don’t use the Internet. Theoretically,
wil ful y commits copyright infringement
anyone who makes an unauthorized copy of for financial gain. “Financial g
ain” includes
any work or works worth more than $1,000 receipt, or expectation of receipt, of anything could be subject to criminal prosecution
of value, including the receipt of other
by the federal government. For example, a
copyrighted works.
group of computer scientists has expressed
If fewer than ten unauthorized copies
the concern that scientists and educators
are made, or the copied works have a retail
who share their articles and research with
value of less than $2,500, violators can be
students and colleagues via the Internet
imprisoned up to one year or fined up to
could be subject to criminal prosecution.
$100,000 or both.
Others have expressed the fear that the
If the offense consists of reproducing or
law could abrogate the fair use rule that
distributing during any 180-day period, at
permits unauthorized copying under certain least ten copies of one or more copyrighted
circumstances. (See Chapter 10.)
works, with a retail value of more than
These fears seem exaggerated. It’s hard to
$2,500, violators can be jailed for up to five
believe the U.S. Justice Department would
years or fined up to $250,000 or both. Jail
criminal y prosecute a scientist or an educator time can be increased to ten years in the who shares an article with col eagues. More-case of a second or subsequent offense.
over, the requirement that the infringement
be wil ful to be criminal y liable provides
some protection. Courts disagree about what Who Is Liable for Infringement?
“wil ful” means in this context, but most
Although a primary goal may be simply to
say that it means an intentional violation of
stop a publisher from sel ing any more copies
a known legal duty. (United States v. Moran,
of an infringing work, you are also entitled
757 F.Supp. 1046, (D. Neb. 1991).) It would
to col ect damages from those liable for the
seem that a person who makes a copy of a
infringement. As discussed in Chapter 3,
work in the good-faith belief that the copy-
“Copyright Registration,” if you timely
ing constitutes a fair use is not committing a
registered your work, you may elect to receive
wil ful copyright infringement and therefore
special statutory damages and attorneys’ fees,
should not be convicted under this law.
which is an important right when your actual
damages are very small or difficult to prove.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 301
Multiple Infringements
The Copyright Handbook Page 52