fathom - 1:40 pm on Apr 3, 2012 (gmt 0)
You CAN sue.
However, only actual damages may be recovered, not statutory damages.
Your own quote says exactly that:
If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
You CANNOT get a court date without an issuance number... you need to prove your copyright in advance of going to court as no infringement can occur until a right is proven. In the USA, that right can only be proven through copyright registration.
The quoted para is suggestive that if you have not registered prior to an infringement occurring you can still.
Seth Resnick, a renowned photographer that I respect, has posted on every page the following:
In the event that an infringement is discovered you will be notified and invoiced at the minimum 10x the STANDARD FEE for unauthorized usage and/or prosecuted for Copyright Infringement in U S Federal Court where you will be subject to a fine of US$150,000 statutory damages as well as all court costs and attorneys' fees.
He has the rights to do that... but if I got that in the mail I would toss it in the garbage... then what?
The thing about going to court you have to cough up the expense first, then win, then chase the infringer with court orders thereafter... it isn't cast in stone... and you could equally lose.
The other big problem you have... statutory damages you must prove willful intent... that isn't easy to prove. Even on actual damages, if a website makes $1000 you need to prove the difference that your unauthorized used image produced on its own. In addition, without willful intent you don't get legal expenses either.
I list standard rates for image and text usage on some of my sites just to establish the rate for the page usage and have had a couple of ugly infringement incidents.
Did I collect a major windfall of cash?
Of course not, but they quickly settled for a few thousand just to make me go away because as I pointed out the good IP attorneys easily start at over $300+/hr and they would be paying a LOT of money to the attorney, or they could just pay me upfront and get it over with.
Never forget the deadlines.
That's great ... those ignorant of the law can be coerced into breaking the law for fear of being prosecuted but that doesn't mean you are right.
Don't give people any wiggle room or they will try to wiggle you to death while trying to cover their tracks. I gave them a deadline for making a decision, for making the payment, either by CC or by check, and if by check requested they fax a copy of it to prove it had been written and was indeed going into the mail, with a deadline for receiving it before proceeding otherwise for the maximum allowed by law.
Trick here is the infringer doesn't know if you filed a copyright or not and throwing the exact DMCA in their face with the $150K statutory damages number in their face will scare the heck out of 'em.
Ignorance is bliss but you are still wrong... copyright.gov database can be publicly search for free. I can see you don't have any registered rights. I also know that it take 9 months to get an issuance number (or you can pay $750 per title for a fast claim).
You'll be shocked how prompt people can be when the alternative is dropping 2x-3x the amount hiring an attorney to defend themselves.
I'm shocked that you would be so cavalier with a right. You really should contact an IP attorney for a free consultation before you get yourself into trouble.
The LAW is about equality. The courts are there to settle disputes, you don't have a lock on righteousness you are merely the plaintiff with certain rights. The alleged infringer also has rights and one of those is they don't need to proven anything. You shoulder the burden of proof... that isn't easy to do especially if your coercion scheme is brought into the picture.
That Seth Resnick, the renowned photographer that you respect is potentially screwing himself for any court action (suggesting he has no intention on ever exercising his rights).