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TWO PARTS TAKING ADVANTAGE OF Digital Millennium Copyright Act (DMCA)

Cincinnati, OH |

1. Does sending proper notice by way of DMCA “Shut down notice” of infringing copying content hurt the case; were if payment is being received a shut down notice will lessen any profits that could be gained.

2. Does sending DMCA Shut down notice add additional vitality to a claim of copyright infringement?

Attorney Answers 4

Posted

Your question is confusing, but seems to be asking if you should refrain from sending a DMCA take-down notice so that the accused infringer unknowingly runs up the copyright damages. If your accused infringer falls withing the safe-harbor of the DMCA, that could be a defense to copyright infringement and you may wind up collecting no damages. Also, you should be looking to mitigating damages, not exacerbating them.

This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.

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Posted

Again, these are questions you need to ask your own lawyer.

A failure to send a takedown notice could give the alleged infringer a defense to your claim, because the DMCA is supposed to allow them some notice and opportunity to comply before a lawsuit is filed.

Copyright infringement litigation isn't a DIY job, and federal judges hate pro ses who go into court not knowing what they're doing, The statutes reward getting a lawyer, and the case law acknowledges appropriate attempts to avoid litigation, which for some reason you're not doing. If you've tried and can't find a lawyer for your case because it lacks value, take the hint and stop wasting everybody's time and the taxpayers' money.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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7 comments

Asker

Posted

Thank you, my questions are general to give me an understanding of the process. This forum was developed for us Pro Se or anyone who have legal questions. My questioning in no way would suggest I would act as if, I have the knowledge or could gain it from a forum of this nature to practice law. It is quite obvious courts are for experience attorneys. I think for the common good well and justice; a Pro Se who has copyrighted property being stolen, it is worth presenting to an honorable Judge. However I do believe if there case is ordered to proceed they should never stop searching for the funds to retain counsel for their case. Copyright cases are never taken on pro bono or on a contingency basis leaving many artist to fend for themselves or simply allow infringers free rain to their content.

Asker

Posted

When I filed my case in Federal Court, I made it clear in my complaint I am not an attorney and I would observed Federal and Civil Rules of Procedures to the best of my knowledge and understanding. The Honorable Judge allowed my case to proceed. Prominent legal Counsel has agreed to represent my case.

Pamela Koslyn

Pamela Koslyn

Posted

Copyright cases are virtually never taken on a pro bono basis because they're too much work. But good copyright cases ARE frequently taken on a contingency basis if there are legal fees available per statute. If you've got a lawyer, then they'll be the 1st one to advise you that you shouldn't be posting anything about your case on this public forum.

Asker

Posted

No I don't have one at this moment, my questions are general and my case is public knowledge at this moment.

Pamela Koslyn

Pamela Koslyn

Posted

I thought you had a lawyer. You posted "Prominent legal Counsel has agreed to represent my case."

Asker

Posted

Working on the retainer, no one going to take copyright cases on contingency fee or pro bono, a growing concern among artist, into days economy, where the Internet have rapidly expanded infringement giving infringers free rain. In the ringtone industry infringers are making million in profits, without paying royalties to the original artist. Firms have mentioned intellectual property cases are complex and can run legal fees from 50,000 into the millions. Were on our way to Sunday services have a great day.

Asker

Posted

Lastly copyright cases pose the biggest concern among lawyers because unlike patents, a copyrights validity can be challenged in court, that the author (artist) have defrauded the copyright office in obtaining the copyright. A flaunt I believe in the copyright process where they don’t do prior art searches when granting copyrights. Patents have prior art searches performed before a patent is granted. Many defendants lawyers can make this assertion about the copyrights validity even when the copyright was applied for by an attorney. Thank you!

Posted

I have read your questions several times and can't really understand you. I have read Ms. Koslyn's answer (which is always on point) and her answer didn't help me understand what your questions were. If you are going to court, I respectfully suggest a judge won't understand you either.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

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3 comments

Asker

Posted

Thank you, I just wanted to know information about the process. The question should have been better written: Should a hosting company that is hosting unauthorized copyright material be provided with notice of Cease and Desist or simply be sued.

Michael Charles Doland

Michael Charles Doland

Posted

The takedown should be sent before suit. Hope no offense was taken, sometimes I am not as clear as I wish or should be.

Asker

Posted

Thank you, the information valuable, have a great week!

Posted

First and foremost (and perhaps not on direct point) you MUST be able to properly phrase your question so that people can understand it. Part of the problem appears to be sloppy typing, but there's also the chance that you don't fully understand the legal matters in question... which goes to another answer to this question - if we can't understand you, a judge won't understand you. And the judge won't be very nice about it.

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