- Can a copyright holder sue an infringer without first sending a cease and desist notice?
- If they do send a notice and the infringer complies, can they still sue?
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30Imagine the situation where you've been ripping someone off for years and they send you a letter telling you to stop. You stop. That doesn't excuse your years of abuse, and they can still sue for that.– Stuart FCommented Oct 25, 2022 at 14:52
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1A lawsuit implies a C&D. If you get sued, and then turn around and keep doing it, that's just asking to be sued again, with an even bigger penalty, with a much faster judgement time. C&D is to prevent future infringement. Suing is to recover damages in the past. You typically can't sue someone for what they WANT to do in the future. Of course planning to murder is serious enough that you can go to jail for it, but, say, looking at copyrighted code and thinking about copying it is going to be hard to prove.– NelsonCommented Oct 27, 2022 at 1:47
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3As a general rule, in the US, the relevant question is not usually ‘Can I be sued under these circumstances?’ (that’s usually a ‘yes’) but instead ‘How likely is it that a civil suit brought against me under these circumstances be thrown out by the judge?’.– Austin HemmelgarnCommented Oct 27, 2022 at 19:09
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2 Answers
A cease and desist letter is not binding or mandatory (for copyright infringement, and in most other circumstances). You are not required to send such a letter, and even if you do, any vague suggestion that compliance guarantees that the future plaintiff will not sue is non-binding. Such a letter simply warns the recipient of possible consequences of continuing the action. The closest connection to an enforceable cease and desist letter in the case of copyright infringement is that under DMCA, a plaintiff may send a certain kind of cease and desist letter to an internet service provider, and if they comply (etc.) the provider cannot be sued for contributory infringement.
answered Oct 25, 2022 at 15:15
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6"any vague suggestion that compliance guarantees that the future plaintiff will not sue is non-binding." Do you have authority for this? I suspect the reality is a bit more nuanced.– bdb484Commented Oct 25, 2022 at 20:28
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2I'd add that a C&D further doesn't even need to be accurate, with regards to legal standing to actually sue, stressing that it merely informs that legal action is being considered because of specific actions by the other party.– user608Commented Oct 26, 2022 at 15:48
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A cease and desist letter serves notice on the recipient that they are believed to be infringing on someone else's work. You may be unintentionally infringing someone's work, for example if you believe it is ok to distribute 'abandonware'. If you receive a cease and desist, and you look at the files and they do have a copyright notice that doesn't belong to you, that can lead to you being found to be intentionally or willfully infringing which can up the civil penalties. If you immediately remove those items then the chance of that happening is much lower, but you can still be sued. Commented Oct 28, 2022 at 20:30
Yes, they absolutely can sue without sending a C&D.
Yes, they can sue if you comply with their C&D; however, the entire point of sending the C&D was to hope for an expeditious end of the infringement. So suing anyway has several bad effects for them:
- it defeats the purpose of sending the C&D, i.e. conflicts with their own intent.
- if they can't show the infringement is significant or repeated, pursuing damages makes them appear arbitrary and vindictive, which weakens their case in the eyes of a jury and in the forum of public opinion.
- it telegraphs to other infringers that they don't honor the gentlemen's agreement of "comply with C&D and we won't sue". This reduces the effectiveness of their C&Ds in the future, making future infringers more likely to dig in their heels and fight.
However, they might reasonably sue if it is later discovered that their damages are much worse than were thought at the time of C&D issuance.
answered Oct 26, 2022 at 1:18
Harper - Reinstate MonicaHarper - Reinstate Monica
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8Suing covers "moment of infringement till end of infringement" whereas C&D is about "now till infinity". The goal of a C&D is stop these two timeframes from overlapping, but doesn't by itself affect the damages from "the moment of infringement till now" Commented Oct 26, 2022 at 8:11
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9@DavidMulder: A C&D might affect damages. If an infringer ignores a C&D, the rightsholder can use that as evidence that the infringement was willful, thus increasing damages.– BrianCommented Oct 26, 2022 at 14:29
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1I upvoted for your last sentence, but I think "send a C&D" is more or less the first action regardless of intent to sue. It shows and timestamps the start of negotiations, knowledge of infringement, enumerates complaints, etc. It's the pivot in time that David notes above.– user608Commented Oct 26, 2022 at 15:51
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3@David sure, but if the holder's enforcement people are on the ball, the first period is de minimus and not worth chasing, so it would be cruel overkill to further mess with an infringer who is typically a novice who made an honest mistake unlikely to repeat. I'm thinking of the majority of cases where C&Ds are used, largely in social media..... not a Chinese shop making a knockoff of your home exercise machine, where the infringers know the score. Commented Oct 26, 2022 at 19:14
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3@Harper-ReinstateMonica Breaking the law shouldn't require educating every single 'novice' by allowing them one first mistake for free though, after all, we can't sue every single person in the world. Too much copyright infringement happens because even if you know it's wrong, you are completely convinced there won't be any consequences. Commented Oct 28, 2022 at 5:07