Another Cease and Desist Letter: 4E Powercards

[Dannager]

In fact if I were in such a position I would. The damages are as real as the law concerning them is. Is there such a law that enforces what you are talking about?

Do you even understand how civil law works? Or that it exists to begin with?

 

[Filcher]

Thing is, we are in a new digital age. For a lot of the smaller 3pp, the only product is a PDF. For these publishers, every unpurchased PDF is a loss of a sale. Every unpurchased PDF is damage.

If this is true for a small 3pp, why wouldn't it be true for WotC?

Yes, the illegal distribution of a 3pp PDF might promote later sales, but unless the publisher authorizes the distribution, it is still stealing the one product they have.

 

[Cor Azer]

The only price that can be paid for copyright infringement is a set of damages.

Note that there are generally two types of damages - statutory damages deal with how much your actions cost me, while punitive damages are a way of saying "no matter how much actual damage you did to me, the judge wants to discourage both you and anyone else from acting like this in the future". The two are not mutually exclusive, nor are they linked.

So if ABC is ruled to be doing zero damage, there is no price to pay for the infringement and it can continue in perpetuity as it is doing no damage.

So, be careful here about the "ruled to be doing zero damage". ABC may not have caused any statutory damage, but there may still be punitive damage. And even if ABC was found to not have caused any damage in this instance, it in no way says they can continue in perpetuity. Or at least, there's no guarantee of such. It really depends on the reason for the lack of damages (ie, if it was because the usage was in line with fair use, then fair use can continue; but if, for example, you discovered ABC was infringing on your copyright before they actually published the supplement, you can demand they stop, the courts might not award statutory damages (since ABC didn't release the product), punitive damages may or may not be assessed (likely depending on how nice ABC's lawyers play with the court), but that does not mean they can now continue to publish their product.

Long story short: no damages does not automatically mean continue on for perpetuity.

Now, web site "A" who is offering a free service can be demosntrated to be doing damage. Every time somebody uses the service, that's a DDI subscription of a Power Cards sale that WotC does not realize because the end product was delivered by web site A.

So if it can be demonstrated from web logs that web site "A" had 9000 individual PDFs created, WotC wouldl be within their rights to demand $45,000 in damages (9,000 times $5/month DDI subscription).

Failure to enforce the copyright immediately would decrease the value of the copyright by $45,000.

The damages might be reduced, but the value of copyright isn't... copyright has no explicit monetary value, absent of licensing revenue or goodwill capital.

Scenario:
Site A reproduces WotC material starting in January. WotC discovers it in March. If WotC respond immediately (where immediately is defined by the courts), Site A is liable for statutory damages for two months. If WotC decides to wait for X amount of time (say, a year), Site A can probably get that difference of time excluded from the statutory damages; they're still liable for the first two months, but their (competent?) lawyer can probably argue that WotC delayed responding to run up the damages.
In either event though, once WotC responds, assuming the material is found to be infringing, the site is not allowed to keep it up.

More so, the copyright on WotC's material is not worth any less. Statutory damages may be lessened, but litigation income is not tied to the value of copyrighted material. And any delay in responding to this case has no bearing on any other infringement case that may be pending.

 

[Cor Azer]

No because the service is free. Wotc has no basis to claim that those who freely downloaded such content would pay what Wotc is asking for if the web site was not freely distributing such content.

Yes, WotC would probably claim each use was a lost sale. A competent defense lawyer would show that not every usage would have led to a DDI subscription had the infringing material not been available. So it probably would have been, essentially, a haggling - WotC claiming $45K in damages, ABC claiming $0 in damages, and the judge awarding $X in statutory damages, where 0 <= X <= 45K, plus possibly some amount in punitive damages. Exactly where X falls in there depends on lawyer arguments, amount of infringement, and probably a few other things.

Note that if ABC was charging for their service, their derived income would probably be added on top of the statutory damages above; so not charged saves yoy from paying more, but it doesn't necessarily stop you from paying anything.

 

[Oldtimer]

The only price that can be paid for copyright infringement is a set of damages.

Unless you count fines and jail time, of course.

So if ABC is ruled to be doing zero damage, there is no price to pay for the infringement and it can continue in perpetuity as it is doing no damage.

No, it would still be a crime. It seems you are only talking about civil law here. What about criminal law?

I realise that were talking US law in this thread, since the site was located in the US. Maybe that's what is confusing me. Surely copyright infringement is a crime in the US? A crime with jail as a possible sentence and heavy fines as a minimum?

In my jurisdiction (Sweden), this case would be reported to the police and end up in a criminal court. The amount of damages you receive depend on the actual damages you can prove (we don't have punitive damages in a criminal court). No matter what damages you receive, the persons found guilty of copyright infringement would receive a punishment of heavy fines or jail. Even if you can't prove any actual damage, the copyright infringement still stands. Does it not work in a similar way in the US?

 

[Cor Azer]

Unless you count fines and jail time, of course.

No, it would still be a crime. It seems you are only talking about civil law here. What about criminal law?

I realise that were talking US law in this thread, since the site was located in the US. Maybe that's what is confusing me. Surely copyright infringement is a crime in the US? A crime with jail as a possible sentence and heavy fines as a minimum?

In my jurisdiction (Sweden), this case would be reported to the police and end up in a criminal court. The amount of damages you receive depend on the actual damages you can prove (we don't have punitive damages in a criminal court). No matter what damages you receive, the persons found guilty of copyright infringement would receive a punishment of heavy fines or jail. Even if you can't prove any actual damage, the copyright infringement still stands. Does it not work in a similar way in the US?

Not all copyright infringement is criminal activity in the US. I am unsure of what damage threshold or requirements are needed in the case for it to be considered criminal.

 

[Fifth Element]

In fact if I were in such a position I would. The damages are as real as the law concerning them is. Is there such a law that enforces what you are talking about?

I humbly suggest that you should let your attorney do the arguing, if you ever find yourself in such a situation.

 

[Oldtimer]

Not all copyright infringement is criminal activity in the US. I am unsure of what damage threshold or requirements are needed in the case for it to be considered criminal.

But if it's below the criminal threshold, can you still engage in a civil suit? And how can it be copyright infringement if it's not a criminal activity. Is your copyright law not part of the criminal code?

I'm sorry if I derail the thread with detailed law questions, but I find it very interesting to learn the differences between US law and our law in this area. Sometimes (as when we were debating the previous C&D against Ema) US law is not even applicable, so it's good to know how it differs.

 

[xechnao]

I humbly suggest that you should let your attorney do the arguing, if you ever find yourself in such a situation.

If yo could afford one that is. Even this matter is bogus. In some countries for example the state does not grant you one for civil cases but it does for criminal ones.

 

[xechnao]

Yes, WotC would probably claim each use was a lost sale.

In US law is claiming enough or does it have to provide some substantial evidence or something like that? I mean how the legal system defends itself by the possibility for someone to start charging for millions for some power card or whatever product have you and then asking for damages for someone that has been distributing them for free?