How To Handle A Copyright Infringement Notice

Please link here from your blog or website to help spread the word!

If you are freaking out or desperate, skip directly to damage control. Read the rest after you're done!

Also look over the list of companies who engage in copyright-related threats, lawsuits, or hire others to do so on their behalf.

Copyright settlement letters and offers should generally be ignored; despite the threat of a lawsuit, a very small minority of offer recipients actually get sued. THE NAME OF THE GAME: MAINTAIN SILENCE. If they can't confirm that you ever received the notice, they're even less likely to go after you. (Did you already follow some of the directions?)

If you receive a copyright infringement notice, don't respond to it, don't visit the website provided, ignore threats of lawsuits and settlement offers, and if you are actually distributing the material in question, STOP IMMEDIATELY.

The best way to avoid such a notice is prevention and education. Learn what triggers these notices and how to prevent them. If you have a wireless router and it is not secured or password-protected, you need to lock it down immediately. If you run peer-to-peer file sharing software, it is a great idea to check for material being offered for upload by the software and remove it. Also, if the ports being used by the software are reconfigurable, change them so that your active software no longer uses the port number in the notice.

Note that ISPs are required to forward DMCA notices to you to maintain "safe harbor" status. Charter Communications, in particular, is notorious for mailing postcards claiming to be from "Charter High-Speed Internet Security Team," requesting that you visit security.charter.com and punch in a message ID and your Charter account number. These are DMCA notices, but look like they have something to do with identity theft or viruses or spam relaying being detected.

NEVER RESPOND TO COPYRIGHT SETTLEMENT OFFERS OR COPYRIGHT INFRINGEMENT NOTICES. THIS INCLUDES VISITING A WEBSITE AND/OR ENTERING A PROVIDED CODE. BY ENTERING THE CODE, THEY CAN CONFIRM THAT YOU RECEIVED THE MESSAGE!

"I already gave them my name/entered the code/called them/visited their site! What do I do?!" Relax! You still have factors working in your favor that make it very unlikely you'll actually be sued. Remember that they're in this game to make money, and you're supposed to "chicken out" and cough up some money without them ever having to prove their case in court. If you don't pay up, the copyright troll will have to decide between letting it slide and focusing on easier prey, or paying a few hundred dollars in filing fees plus the daily salary for a real lawyer to stand in that courtroom. A settlement yields huge profits, while a court battle can actually end badly for the trolls who may be "on the hook" for your legal fees if they lose.

Aside from the risks and costs involved in going after you officially, consider the proof that they would need to produce. Your confirmed receipt of a postcard or email with a code and entering the code does not in any way constitute admission of guilt. Essentially, if you don't do something that is tantamount to saying "I am guilty and my name is Samuel Manchester Oakenfold IV in Farmville, VA; send the bill to this address..." then you haven't contributed enough to prove that you infringed. Knowing the name behind the IP address is the first step in a lawsuit (since defendants must be named to be sued), but simply knowing the name of the IP address user doesn't make you guilty either.

The burden of proof in civil cases is lower than in criminal cases. Civil requires "clear and convincing proof" while criminal requires "proof beyond a reasonable doubt." The suing party must show "clear and convincing" evidence that you infringed on the copyright of their client(s) to win the case. If you don't admit guilt, don't have infringing materials on your hard drives (which will be subpoenaed), and don't give out any information otherwise such as in a forum or on a blog, the only evidence that exists is a shaky claim of the IP address you were assigned having participated in infringement. So far, everyone who has lost in an online copyright infringement case (i.e. Jammie Thomas-Rasset) has in some way or another admitted guilt and then attempted to frantically backtrack; no case exists that has been won solely on the merits of an IP address being known and alleged to have been used for infringement.

"I was a complete idiot and said or wrote something that I think could be considered an admission of guilt! Help!" Don't panic. The first thing to do is to firmly take a position of silence. If you have admitted guilt or said something that could be construed as an admission of guilt, you are at a higher risk of litigation (though you still have the costs and risks working in your favor, those risks are lower for the copyright troll since they may now have enough proof to convince a jury that you did it.) GET A LAWYER. I'M SOME PERSON ON THE INTERNET, NOT A LAWYER. Now, if you're going to be a complete moron and not at least consult with a professional, there are some things you can do to lower your risk, particularly in the event that things actually go to trial. See the guide I've written to help people who feel like a bulls-eye is on their back right now.


THE QUICK AND DIRTY GUIDE TO COPYRIGHT INFRINGEMENT DAMAGE CONTROL

The suggestions in this guide, if actually followed, shall be performed entirely at your own risk. This guide IS NOT TO BE CONSIDERED LEGAL ADVICE and you should GET A LAWYER! It's possible that some of the actions suggested aren't actually a good idea. By reading it, you certify that you understand that this guide is not intended as legal advice and agree to indemnify and hold the author harmless from any action stemming, directly or indirectly, from reading this guide.

So you're freaking out and feel a desperate need to do some damage control? This short guide will help you understand different facets of the problem you face, and what you could possibly do to minimize risk. In a panic, some people will do things that actually make things worse, so TAKE A DEEP BREATH BEFORE READING FURTHER. When you're calmed down and ready to tackle the task of damage control, you may proceed. We'll cover this point by point, and we're going to assume you are probably going to court so that you're fully prepared if you actually end up there. Ready?

KEEP EVERYTHING YOU RECEIVE: Postcards, electronic mail messages, and any other communication between yourself and any other related parties needs to be archived somewhere safe for your own reference and/or to present during the court case (if it even makes it that far!) Destroying letters or deleting emails or failing to record telephone calls ONLY HURTS YOUR ABILITY TO DEFEND YOURSELF. You cannot "make it go away" by destroying the letter or message and pretending it was never received. You can just as easily print a message, stuff it in a bank safe deposit box, and then proceed to enjoy your right to keep your mouth shut and pretend like you never received the letter if it is in your interests to do so. For all you know at this stage, the letter you might be afraid of and inclined to throw away may contain information that proves you're innocent!

REALLY DELETE INFRINGING MATERIAL: Unlike communication between you and others, any potentially infringing data on your computer is almost certainly NOT going to prove that you aren't guilty of copyright infringement. The problem is that it's nearly impossible to RELIABLY destroy traces of the files that you delete. When a file is deleted on a computer, the information inside is never removed from the disk, and even the file name entry is left intact; the space and the file name entry used by the file are simply marked as "free to use" again, and until your operating system decides to overwrite that information with new stuff in the future, you must assume it's all still there. In fact, software such as EnCase exists mainly for the purpose of finding such data so that they can use it against you.

There is no doubt that if you're reading this, you want to destroy all possible traces of anything on your hard drive. It's conceivable that a partially overwritten file name entry whose ending after the overwritten first four characters is "normal.avi" could be used against you if an allegedly infringed movie is the film "Paranormal." The only way to remove data from a hard drive so that no one short of the CIA or FBI could ever hope to recover anything is to write something different to every single sector of the drive. That means backing up your important information to a different drive or CD/DVD, making sure you have the required discs or installers and license information to reinstall every single thing on your system, running a drive wiping tool that performs the complete erasure as described, and reinstalling everything from scratch. If you aren't the most computer-literate person or you're not confident in your abilities to get this done, seek the assistance of a professional computer service provider that can understand this paragraph's requirements clearly. If you are in central North Carolina, or you'd rather trust a known expert who can do this for you (and that you can work with by shipping the system back and forth), contact Tritech Computer Solutions for a data backup with suspicious data excluded, complete drive wipe, full software reinstallation, and data restoration. If you previously stored other sensitive information on the system, a drive wipe will ensure that those deleted files are definitely destroyed and not recoverable.

At a minimum, you need to have a product recovery CD or DVD that came with your computer system handy, along with a license key (usually on a sticker applied to the side of the computer system, consisting of five groups of five characters each, separated by hyphens.) It is highly likely that you'll need a separate driver CD if your computer came with a "real" Windows XP, Vista, or 7 installation disc instead of a "product recovery" style disc that restores the system to its original state as shipped from the manufacturer. Some computers don't come with discs and you must use a program included with the system to burn your own copies of the recovery media. Contact your computer manufacturer if you cannot find any of these things or you don't have the discs required. Alternatively, call a computer service provider, especially if you're starting to feel uncomfortable about the process already.

The easiest way to perform a full hard drive wipe yourself is to download and run Darik's Boot and Nuke on your machine. DBAN WILL ERASE EVERY DRIVE CONNECTED TO YOUR COMPUTER, SO UNPLUG ALL EXTERNAL HARD DRIVES, FLASH DRIVES, AND CAMERA PICTURE CARDS BEFORE RUNNING IT. If you need help with using DBAN, Google is your friend; chances are that your questions will be answered with a simple search. You MUST WIPE YOUR HARD DRIVE ENTIRELY whether with DBAN or another tool made for that purpose, otherwise the latent information you're concerned with WILL NOT BE ERASED, and you will remain at risk! Deletion and Windows-based "wipe" or "shred" or "secure delete" tools such as CCleaner ARE NOT SUFFICIENT TO ENSURE ALL DATA IS ELIMINATED!

YOUR COMPUTER IS NOT THE ONLY TARGET: Even if you wipe your computer's hard drive entirely, information may exist on other media that could be subject to subpoena. Once your property is subpoenaed in a court case, you can be charged with a serious criminal offense if you tamper with any potential evidence, so performing these steps as soon as possible is vital to damage control. Consider any data that is stored on external hard drives, CD/DVD, USB flash drives, flash cards, cell phones, portable music players, etc. as potential targets. If in doubt, back up all of the information you care about to an external hard drive and put that drive somewhere safe (and preferably not somewhere you control such as a safe deposit box or your home or office cubicle!) Then proceed to destroy the data on these devices as needed. The previously mentioned CCleaner program has a "wipe free space" tool which may get the job done; I've personally used it but I haven't analyzed a CCleaner wipe on a forensic level to ensure it actually wipes enough traces, so don't assume it will take care of it. If in doubt, plug all of the devices you're worried about into the machine before you use DBAN, and have them all wiped out at that point in time. Optical discs such as CDs and DVDs can be destroyed by tossing them one at a time into a microwave and running the microwave for approximately 8 seconds, which will cause the recording layer of the media to arc and disintegrate, effectively rendering it unreadable without special equipment and many man-hours of effort.

DON'T INSTALL SOFTWARE OR VISIT SITES USED FOR INFRINGEMENT: That means staying away from Ares, FrostWire, LimeWire, uTorrent, and anything similar. The mere existence of any such program on your computer (or the entries they make in the system registry that show they were once installed) can be used as supporting evidence to find you guilty of infringement! Also avoid visiting websites commonly associated with infringement such as The Pirate Bay, IsoHunt, etc. as these sites appearing in your history could also be presented as evidence against you, and while it's very weak evidence alone, the combination of The Pirate Bay in the browser history plus an installation of uTorrent combined are far more powerful evidence that you were potentially infringing than if only one of those is discovered. Visiting forums such as the PhoenixLabs forums (which hosts PeerGuardian2, but also hosts discussion about issues related to copyrights and infringement) should not be problematic, because such forums are often visited by individuals who are interested in understanding copyright and copyright lawsuits in greater depth, and you have a right to research the claims being made against you.

DON'T INFRINGE FROM NOW ON, AND EDUCATE OTHERS IN YOUR HOME: Many copyright lawsuits involve parents, grandparents, or other adults who did not infringe upon copyrights, only to discover that a child or other household member was responsible. Minors who infringe will bring threats and possible lawsuits upon their parents or guardians, so it is ABSOLUTELY CRUCIAL that you talk to everyone who uses your Internet service at your home or business about the copyright issue, and ensure that they are educated on how to avoid infringing in the first place. If you don't infringe on copyright, you have less risk over your head! Make sure that you learn as much as you possibly can on how infringement happens so that you can be certain it doesn't happen at your IP address. If you use Wi-Fi, you also need to talk to anyone who leeches off of your wireless connection, because their actions can bring the torrent police upon you also, and the courts don't seem to go with the "I have open Wi-Fi and other people can get on it freely!" excuse too well. Education is key. Protect yourself with knowledge. A good place to start might be the Electronic Frontier Foundation.

Additionally, it never hurts to know your rights, regardless of how far things go. The EFF has produced a very helpful guide on search, seizure, and subpoenas that everyone should read at least once.


LIST OF COMPANIES THAT THREATEN AND SUE

The companies that engage in these actions should be made known for their reprehensible behavior, as well as the companies that pay them for such "services." What follows is a (likely incomplete) list of companies that are known to have some degree of involvement with these malicious actions. Don't give them another cent, so as to discourage this type of behavior, until they officially state that they will no longer engage in hostile actions against their own customers and potential customers. Links are provided where possible as references, so that you can research each company's individual behavior easily. Companies like Takedown Piracy are a much better role model for how anti-piracy efforts should be conducted; they don't threaten to sue unless a settlement is paid, and they don't seem to go after individual infringers on peer-to-peer networks. They submit DMCA takedown requests to lock down the sources of pirated works in search results and shut down blogs and other sites whose sole purpose is to offer up pirated material. I don't necessarily agree with 100% of their tactics or the attitude that Nate displays in a couple of his posts there, but they seem to have taken a more positive path than the "pay up or else" crowd.


I am not a lawyer and this is merely advice from a layperson within the information technology industry.

I will add more information and links here over time, to assist people with copyright infringement notice issues in researching and understanding what they're up against. Feel free to check back anytime.