United States civil copyright enforcement procedure

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Under United States copyright law [1] the owner of a copyright is entitled to relief from unauthorized copying, displaying, distribution or performance of the copyrighted work, all collectively known as copyright infringement. This is a procedurually-oriented description of the steps necessary to enforce a copyright claim in the U.S. In brief:

  • Send a cease-and-desist letter. Optionally seek a temporary restraining order.
  • File lawsuit
  • Seek a preliminary injunction
  • Proceed through trial to arrive at a final decree on permanent injunction and damages

The relief available to a copyright owner for infringement begins when the owner notifies the infringing party that a copyright has been violated. Several types of injunctive relief are available from a court of law. The copyright owner can recover damages and further injunctive relief by way of final judgment and decree on a lawsuit.

Contents

[edit] Request the infringing party cease, and temporary restraining order

Prior to filing a lawsuit, a copyright owner has two methods of relief available. Industry practice encourages a copyright owner to first send a communication that asks the infringer to "cease and desist" the actions constituting the infringement when the owner becomes aware of an infringement on the copyrighted work. If the infringing party does not abide by this request, the second method available to the owner is a temporary restraining order. A temporary restraining order is issued by a court of law and enjoins the infringer from continuing the copyright infringement for a period not longer than ten days. This ten day period protects a copyright owner from further damage and provides the owner the opportunity to file and obtain a preliminary injunction.

[edit] Preliminary Injuction, Trial

A preliminary injunction, like a temporary restraining order, enjoins the infringing party from continuing the copyright infringement. This type of injunction lasts throughout the period of trial until a decision is issued on the case by a court of law. In order to obtain a preliminary injunction, a copyright owner must show each of the following:

(1) the plaintiff has a likelihood of success on the merits of its claim,
(2) the plaintiff will suffer irreparable harm without the injunction,
(3) the harm is greater than the injury the defendant will suffer if the injunction is granted, and
(4) the injunction will not harm the public interest.

Though in practice, if a copyright owner (plaintiff) succeeds in proving the first requirement above, most courts will grant the injunction without much consideration given to the remaining requirements. Even with a relaxing of these requirements a copyright owner cannot be lax in seeking a preliminary injunction. Undue delay in seeking the injunction can negate the necessary proof of irreparable harm and may act as a bar to the issuance of the preliminary injunction, thus leaving the copyright owner without relief until after trial.

[edit] Remedies and relief available from successful trial court judgement

If a copyright owner succeeds at trial in establishing copyright infringement, the owner is entitled to recoup monetary damages and to the issuance of a permanent injunction against the infringer. The monetary damages that a successful plaintiff-owner is entitled to include the owner’s actual damages, additional profits realized by the infringer, statutory damages, and attorneys’ fees. A permanent injunction has been held to be appropriate when monetary damages are insufficient to compensate the copyright owner. Courts of law consider the magnitude of the past infringement and whether there is the threat of future infringement when granting a permanent injunction. An injunction, permanent or otherwise, is enforceable against the defendant in every state regardless of where it was issued. Of note is that permanent injunctions are not available in lawsuits against the United States government and brought in the Court of Federal Claims.

One final remedy for a copyright owner works in conjunction with a permanent injunction to offer protection against future infringement. As part of a final judgment in a lawsuit for copyright infringement, a court may order the destruction or disposition of the articles used to violate a copyright owner’s exclusive rights. Articles available for destruction or disposition include any reproductions of the copyrighted work and any equipment used to make the reproductions.

[edit] References

  1. ^ http://www.copyright.gov/title17/ United States Code, Title 17, Copyright

[edit] See also