By Shaun Spalding
on Sun, 11/27/2011 - 22:14
What are the penalties for false copyright infringement claims?
In the United States, we have the luxury of being able to voice our viewpoints in a relatively unlimited fashion, even if those viewpoints are controversial, objectionable, or even totally incorrect. The fair use doctrine allows creators to take portions of other peopleís work and adapt, criticize, parody, or add to them without the permission of the original creator as long as those uses meet a set of subjective requirements. Fair use doesnít even require that the original author is credited for his or her contribution.
Itís often the case where someone will take authorsí original work without permission and reuse it in ways that the author hadnít intended to or entirely objects to. Since its so easy to send a copyright-related cease-and-desist letter or a DMCA takedown notice, it wouldnít be terribly difficult to stop some controversial reuse of your material or even punish that person for reusing your work in such an objectionable way.
Even though it is a tempting way to get someoneís work taken down or to cause someone problems, it is not legal, financially wise, or ethical for you to claim someone has infringed your copyright when this hasnít occurred.
If you send a cease-and-desist letter to an infringer, there is a risk that the infringer may file a lawsuit in the infringerís jurisdiction naming you as a defendant and seeking a declaratory judgment that your copyright is invalid. One recent court decision
found that the sending of a single cease-and-desist letter into the state was enough to subject the defendant to personal jurisdiction in that state.
If you send a DMCA takedown notice that is both false and meant in bad faith (such as to harass, or doesnít state a real claim), you have committed perjury. Though unlikely, if the party you sent the takedown notice to decided to pursue this in court, you could face all of the consequences that your state imposes on people who lie in court.
If you sue someone for copyright infringement in an attempt to harass that person and you lose because there was no infringement, the attorneysí fees provisions may take effect, and you may be forced to pay the other sideís lawyerís fees.
You donít have to be malicious to make a meritless accusation of copyright infringement. Itís easier than you think for people who arenít copyright lawyers to look at an instance of copying and immediately assume its infringement, only for someone more knowledgeable to later determine itís fair use
. Even if you are knowledgeable, itís understandably difficult to fully and accurately analyze a situation when you feel as if youíve been wronged by someone elseís unauthorized copying.
If you feel that you copyright may have been infringed, before you take the drastic step of accusing that person of copyright infringement which may negatively affect everyone involved, feel free to contact us to give you guidance on whether or not someoneís use of your work actually constitutes infringement. You can contact us at New Media Rights at (619) 591-8870
for free, pro bono legal assistance.