'I have received a letter alleging copyright infringement. What should I do?'
No matter who you are, it’s a shock to receive an allegation that you have infringed someone’s intellectual property (IP) rights. Whether you are dealing with a misconceived complaint or you have made a mistake, we can help you over this roadbump in your business’ journey.
Before you contact a copyright solicitor
- Do not panic - this happens to most businesses at some point
- Do not reply - that includes 'without prejudice' letters - without speaking to an IP solicitor
- Diarise any deadlines mentioned in the letter, free up some time to deal with this issue and have an initial call with an IP solicitor quickly.
If you feel compelled to remove whatever material is being complained of straight away, take records first. Any screenshots must be formatted so we can prove their date. It may be better to have our skilled legal support do the job for you before you delete.
Once the letter comes to our copyright solicitors, we will triage the situation – establishing whether there is a real risk of imminent litigation and if so in what jurisdiction, for what cause and with what consequences. Then we will help you form a strategy.
A good strategy is a logical result of:
- Identifying what this claim means to you and
- Understanding what is likely to happen next.
This requires teamwork. Here are just a few of the questions our experts will consider – some you will answer, some we will:
- Who sent the letter? Solicitor? Business owner? What is their reputation?
- What’s the backstory? Is there a prior relationship?
- Will you come across the complainant again in future? How?
- Has the complainant got deep pockets?
- Ethically, is the complaint fair, manufactured, or somewhere in between?
- Are all the legal hurdles for copyright infringement addressed? Accurately?
- Have they supplied evidence? Would it stand up in court?
- Can we see some procedural hurdles to put in their way?
- Which of our hundreds of previous cases does this most closely resemble?
- Realistically, what would the IP judges we appear before make of this?
- What resources of time and money do you have to fight this?
- Do you have a counterclaim?
- How high are the stakes for you and the complainant?
Remember, to find the right strategy, you and your copyright solicitor must exchange information until you establish what this inbound accusation means for you.
The Response to a copyright infringement letter
Our next steps will take into account the many similar cases we have seen before. Sometimes the most sophisticated strategy results in a short-letter – sometimes you won’t even tell your accuser that you are represented. Sometimes attack is the best form of defence. Sometimes a show of respect is required to smooth troubled waters. What we can promise is that the strategy will be tailored to you.
The legal background: Snapshot of a copyright infringement case
In the small number of copyright cases that go to court, accusers need to show that:
- There’s material that qualifies as an identified 'copyright work'
- You have done something in relation to that copyright work
- What you did is connected to the target jurisdiction
- What you did amounts to an act of infringement – deliberate or not
- They are the people entitled to a remedy
- (If they want an injunction) you intend to continue doing what they complained of
Paying damages usually wouldn’t be dealt with by a court until all the questions above had been dealt with – usually at a second trial.