Fannish Guide To Legal Notices: C&D Letters/Take Down Notices Oh My!
What to do if you get a C&D letter
First off, walk - don’t run - to The Fair Use Network and Chilling Effects websites. They both go into greater detail about what to do and how to evaluate the missive that has landed on your doorstep.
Step 1: Don’t panic. To paraphrase Chilling Effects: just because the letter sounds nasty and angry and talks about damages and penalties and lists statutes and court cases, it does not mean (a) you are going to lose, (b) you need to respond back just as nastily or (c) you need to crawl under the covers and hide forever.
Step 2: Try to figure out what it is that you’ve got.
There are three possibilities: a Cease & Desist Letter (C&D), a Digital Millennium Copyright Act notice (DMCA) or an actual lawsuit (we’ll skip nasty e-mails and phone calls that don’t have much legal meaning).
Here are some clues:
*Has it been signed by a judge? (This would be a court order - get thee to an attorney immediately.)
*Does it look at all like this or this? These are actual Cease & Desist Letters. They are most often signed by law firms, but anyone can fill one out and mail it off. Some C&D letters are sent electronically, so be on the lookout.
*Did it come from your Web host or Internet Service Provider (ISP) or the website owner (Youtube, Livejournal)? It may be a take down request issued under the Digital Millennium Copyright Act. Your ISP should give you info on what your next steps may be. Sometimes DMCA notices are also sent to you directly.
*Is it on pleading paper or a complaint and signed by the plaintiff or attorney? It may be an actual lawsuit - get thee to an attorney.
But….what do all the forms mean?
*A C&D letter is a request to stop doing something or else they will sue. You are not being sued! Yet.
*A legal pleading/complaint is what attorneys file with the court. (Yep, you’re being sued).
*A DMCA notice is a notice usually filed with your ISP requesting that *they* take down your website/copyrighted material - you have the right to file a counterclaim to ask your ISP to restore your website.
Step 3: What Do They Want?
Spend some time reading. Do they want you to take something down? Stop posting something? Stop selling something? Do they want you to start doing something? Are they asking you to account for your ‘profits”? Are they asking for money? Are they clear and specific as to what on your webpage/journal they’re objecting to? Or are they making overly broad and vague statements - “site bad take it down now and send me cash.”
Try to figure out what the letter is really about. Fair Use Network says: “What is the context, or larger issue, behind the letter? For instance, the underlying issue may be that the sender feels upset about the content of the target's work, because it is a satire, casts the sender in an unflattering light, or discloses something private or secret. Or the underlying issue may be that the sender simply wants a credit or a licensing fee. Understanding the sender's motivations can help determine what responses will be most effective.”
Fair Use Network also lays out the possible meanings of the wording you may see in your letter.
Step 4: Write back and acknowledge you’ve received the letter. Do not ignore
Tell them you’ve received the letter - but do not admit or deny anything. Do not sign any form they may have included. Be courteous and brief. Tell them you need time to talk an attorney and get legal advice and that you will respond to them by X date. You must respond by the date you have selected. You don’t actually need to hire an attorney or talk to one - but it would be a good idea. The key is to buy you some time so you can research your legal options instead of reacting. But pay attention to deadlines in the letter: Specific wording like “if you do not do X by Y date we will file a lawsuit against you in ABC Superior Court” means you should hustle and talk to an attorney. Even that deadline is not set in stone *if* you reply and give a different response date, especially if you give a good and truthful reason why you need more time, including time to seek legal advice.
Step 5: Sounding The War Drums - Choose The ‘When’ Wisely.
You obviously will need to get legal advice and other input. Do not be afraid to ask for help. But don’t consult with the entirety of fandom and don’t immediately leap to publicize your situation. And ask your friends to hold off making public statements. Why? Because as tempting as it may be to ask for public support, you have to keep in mind that what you say and do can impact your situation and your case (if you do go to court). Bad mouthing ‘The Powers That Be’ may make your actions look intentional and malicious. Inconsistent statements can be used to undercut your credibility. Finally, some actions you take might even increase your damages or the number of claims against you. So before sounding the war drums, talk to someone with a legal background. The Organization For Transformative Works (OTW) might be able to help direct you to someone who can answer your questions. Or you can ask around - there are fans who are attorneys who might be willing to help http://community.livejournal.com/fandom_lawyers. Last, the Fair Use Network has a list of groups that might be willing to help.
Step 6: Plan Out Your Next Steps - And Stick With The Plan
Once you’ve spoken with someone/done research, create your plan and then stick to your plan. You may choose to comply with the letter’s demands and write back saying: “OK, I’ve done what you’ve asked. Please respond by letting me know this matter is resolved and no further actions on my part are required.” You may choose to reply back saying “I don't think you have a basis for your claims and therefore I won’t be complying” (and explain those reasons). But -and this is key - if there are more than one of you involved, make certain everyone is on the same page and that they understand what to do (and what to say or not to say publicly). In other words, control the flow of information and keep copies of everything you send or receive.
At some point it may be in your best interest to start talking about your C&D letter/lawsuit publicly. For example, if the legal and business reasons behind the C&D are weak, a publicity campaign can expose unfair scare tactics and bring pressure to persuade the person or company who sent the C&D to back down. It can also serve notice to other fans that this one studio or actor is treating their fans poorly so we all are forewarned and forearmed. And, if necessary, publicity can also help you raise money for legal fees. But use publicity as part of an overall plan and please talk to someone with legal background. If you are actually in litigation (a lawsuit/complaint has been filed) you must check with your attorney first.
Can I Now Rest? Just because you comply with the C&D letter or the DMCA take down notice does not mean you will not be sued. This is why Step 3 is important - understanding what is really prompting the complaint will help you assess more realistically your chances of being sued. In general, if there is not a lot of money involved complying with the C&D letter will end the matter, though each situation is different.
You Have More Options Than You Think. By the same token, refusing to comply with a C&D letter does not mean you are going to be sued. You can always decline to comply with everything that the C&D letter demands and make a counter offer instead. ‘In order to avoid unnecessary disputes we are willing to add disclaimers/credit you/link to your website.” “Quoting text/offering snippets of video is well established ‘fair use’ but we are willing to include less of your text/story/video.” “If you identify specific infringing materials we will evaluate them/take them down/modify that section of the website.” In short - the entire website/story/photo/vid does not always need to come down just because they demand it.
Don’t Let Them Silence You. And last - many senders of C&D letters try to intimidate the recipients by telling them that the letter is confidential, or private or protected by copyright and that if you talk about the letter or show it to anyone you are breaking the law. This is not true - absent a court order signed by a judge, they have no right to stop you from publishing the letter and its contents. There may be strategic reasons to keep quiet (see Step 5) but do not be misled or intimidated.
Is There Some Other Place I Can Do More Research?
The Fair Use Network has a superb step by step guide to understanding your C&D letter. They also offer a few sample response letters to a C&D notice.
First off, walk - don’t run - to The Fair Use Network and Chilling Effects websites. They both go into greater detail about what to do and how to evaluate the missive that has landed on your doorstep.
Step 1: Don’t panic. To paraphrase Chilling Effects: just because the letter sounds nasty and angry and talks about damages and penalties and lists statutes and court cases, it does not mean (a) you are going to lose, (b) you need to respond back just as nastily or (c) you need to crawl under the covers and hide forever.
Step 2: Try to figure out what it is that you’ve got.
There are three possibilities: a Cease & Desist Letter (C&D), a Digital Millennium Copyright Act notice (DMCA) or an actual lawsuit (we’ll skip nasty e-mails and phone calls that don’t have much legal meaning).
Here are some clues:
*Has it been signed by a judge? (This would be a court order - get thee to an attorney immediately.)
*Does it look at all like this or this? These are actual Cease & Desist Letters. They are most often signed by law firms, but anyone can fill one out and mail it off. Some C&D letters are sent electronically, so be on the lookout.
*Did it come from your Web host or Internet Service Provider (ISP) or the website owner (Youtube, Livejournal)? It may be a take down request issued under the Digital Millennium Copyright Act. Your ISP should give you info on what your next steps may be. Sometimes DMCA notices are also sent to you directly.
*Is it on pleading paper or a complaint and signed by the plaintiff or attorney? It may be an actual lawsuit - get thee to an attorney.
But….what do all the forms mean?
*A C&D letter is a request to stop doing something or else they will sue. You are not being sued! Yet.
*A legal pleading/complaint is what attorneys file with the court. (Yep, you’re being sued).
*A DMCA notice is a notice usually filed with your ISP requesting that *they* take down your website/copyrighted material - you have the right to file a counterclaim to ask your ISP to restore your website.
Step 3: What Do They Want?
Spend some time reading. Do they want you to take something down? Stop posting something? Stop selling something? Do they want you to start doing something? Are they asking you to account for your ‘profits”? Are they asking for money? Are they clear and specific as to what on your webpage/journal they’re objecting to? Or are they making overly broad and vague statements - “site bad take it down now and send me cash.”
Try to figure out what the letter is really about. Fair Use Network says: “What is the context, or larger issue, behind the letter? For instance, the underlying issue may be that the sender feels upset about the content of the target's work, because it is a satire, casts the sender in an unflattering light, or discloses something private or secret. Or the underlying issue may be that the sender simply wants a credit or a licensing fee. Understanding the sender's motivations can help determine what responses will be most effective.”
Fair Use Network also lays out the possible meanings of the wording you may see in your letter.
Step 4: Write back and acknowledge you’ve received the letter. Do not ignore
Tell them you’ve received the letter - but do not admit or deny anything. Do not sign any form they may have included. Be courteous and brief. Tell them you need time to talk an attorney and get legal advice and that you will respond to them by X date. You must respond by the date you have selected. You don’t actually need to hire an attorney or talk to one - but it would be a good idea. The key is to buy you some time so you can research your legal options instead of reacting. But pay attention to deadlines in the letter: Specific wording like “if you do not do X by Y date we will file a lawsuit against you in ABC Superior Court” means you should hustle and talk to an attorney. Even that deadline is not set in stone *if* you reply and give a different response date, especially if you give a good and truthful reason why you need more time, including time to seek legal advice.
Step 5: Sounding The War Drums - Choose The ‘When’ Wisely.
You obviously will need to get legal advice and other input. Do not be afraid to ask for help. But don’t consult with the entirety of fandom and don’t immediately leap to publicize your situation. And ask your friends to hold off making public statements. Why? Because as tempting as it may be to ask for public support, you have to keep in mind that what you say and do can impact your situation and your case (if you do go to court). Bad mouthing ‘The Powers That Be’ may make your actions look intentional and malicious. Inconsistent statements can be used to undercut your credibility. Finally, some actions you take might even increase your damages or the number of claims against you. So before sounding the war drums, talk to someone with a legal background. The Organization For Transformative Works (OTW) might be able to help direct you to someone who can answer your questions. Or you can ask around - there are fans who are attorneys who might be willing to help http://community.livejournal.com/fandom_lawyers. Last, the Fair Use Network has a list of groups that might be willing to help.
Step 6: Plan Out Your Next Steps - And Stick With The Plan
Once you’ve spoken with someone/done research, create your plan and then stick to your plan. You may choose to comply with the letter’s demands and write back saying: “OK, I’ve done what you’ve asked. Please respond by letting me know this matter is resolved and no further actions on my part are required.” You may choose to reply back saying “I don't think you have a basis for your claims and therefore I won’t be complying” (and explain those reasons). But -and this is key - if there are more than one of you involved, make certain everyone is on the same page and that they understand what to do (and what to say or not to say publicly). In other words, control the flow of information and keep copies of everything you send or receive.
At some point it may be in your best interest to start talking about your C&D letter/lawsuit publicly. For example, if the legal and business reasons behind the C&D are weak, a publicity campaign can expose unfair scare tactics and bring pressure to persuade the person or company who sent the C&D to back down. It can also serve notice to other fans that this one studio or actor is treating their fans poorly so we all are forewarned and forearmed. And, if necessary, publicity can also help you raise money for legal fees. But use publicity as part of an overall plan and please talk to someone with legal background. If you are actually in litigation (a lawsuit/complaint has been filed) you must check with your attorney first.
Can I Now Rest? Just because you comply with the C&D letter or the DMCA take down notice does not mean you will not be sued. This is why Step 3 is important - understanding what is really prompting the complaint will help you assess more realistically your chances of being sued. In general, if there is not a lot of money involved complying with the C&D letter will end the matter, though each situation is different.
You Have More Options Than You Think. By the same token, refusing to comply with a C&D letter does not mean you are going to be sued. You can always decline to comply with everything that the C&D letter demands and make a counter offer instead. ‘In order to avoid unnecessary disputes we are willing to add disclaimers/credit you/link to your website.” “Quoting text/offering snippets of video is well established ‘fair use’ but we are willing to include less of your text/story/video.” “If you identify specific infringing materials we will evaluate them/take them down/modify that section of the website.” In short - the entire website/story/photo/vid does not always need to come down just because they demand it.
Don’t Let Them Silence You. And last - many senders of C&D letters try to intimidate the recipients by telling them that the letter is confidential, or private or protected by copyright and that if you talk about the letter or show it to anyone you are breaking the law. This is not true - absent a court order signed by a judge, they have no right to stop you from publishing the letter and its contents. There may be strategic reasons to keep quiet (see Step 5) but do not be misled or intimidated.
Is There Some Other Place I Can Do More Research?
The Fair Use Network has a superb step by step guide to understanding your C&D letter. They also offer a few sample response letters to a C&D notice.