If I fully comply to the terms of a cease and desist notice, will I be left alone?
May 16, 2008 2:56 PM   Subscribe

If I fully comply to the terms of a cease and desist notice, will I be left alone?

I recently received a cease and desist notice from the legal representatives of a company. I was knowingly infringing upon the intellectual property owned by the company. The following is my response to the email I recently received (with sensitive information left out):

"(Name of Legal Representative):

Thank you for courteously notifying me of the matter. I have complied with the requests you made in your letter dated xx-xx-xxxx.

I used the xxxxx software for my own personal purposes. The software was originally obtained from an acquaintance who in turn downloaded the package online. The software has now been erased from my computer hard drive along with the original installation files that were stored on my external hard drive.

I am willing to comply and cooperate in any way that you, or the company that you represent, deem necessary. Please notify me of anything that I may be able to provide in order to satisfy the terms of your cease and desist notice.

Very Respectfully,
(My Name)"

Is this an appropriate response? What are the chances that they will just leave the matter alone and leave me be? I acknowledge that it was my fault, and I am not going to commit the same mistake in the future. I'm a little worried that this might result in me (a poor college student) paying a hefty fine of some sort.

Thanks for all of your help!
posted by mahoganyslide to Law & Government (15 answers total) 1 user marked this as a favorite
To be fair to mahagonyslide, there's no identifying information in his profile. Also, a lawyer would have charged him $1000 at least to write a letter.

No worries, mahogonyslide, if the letter doesn't get them off your back then you consult a lawyer. Usually, they send these out to scare people and they certainly achieved their goal.

BTW ... in the future DON'T ADMIT TO ANYTHING in a letter to a lawyer. That was your real mistake.

But again, don't lose too much sleep over it. I think they'll probably go away once they receive your letter.
posted by bananafish at 3:18 PM on May 16, 2008 [1 favorite]

Were you contacted through your school or directly? This makes a difference.
posted by phunniemee at 3:18 PM on May 16, 2008

How many assets do you have?
posted by norabarnacl3 at 3:23 PM on May 16, 2008

I was contacted directly, through my personal email address. As for assets ... nothing. In fact, I'm in the negative with a gargantuan student loan.

Also, thanks for the information bananafish. I actually haven't sent the response yet, and was wondering if it was appropriate. What I'm having most trouble with, is: how do I respond without admitting that I've done anything? I thought that perhaps openly admitting that I was in fact responsible may outweigh any evidence they have of my wrongdoing. I now understand that this isn't the best policy. So, how would I craft a delicate response that mentions I have complied with the cease and desist notice without admitting anything?
posted by mahoganyslide at 3:25 PM on May 16, 2008

I would simply not respond if I were you. If you stop using the software, you're no longer on the radar. Remember that it costs the company to have their lawyers spend time on this, and I'm sure they don't see any benefit in directly suing individual people, which makes any further action a waste of their time/money.

Of course, IANAL, seek a lawyer's advice, etc etc.
posted by spiderskull at 3:37 PM on May 16, 2008

Tell them you have fully complied with their request without admitting any wrongdoing or giving the details of what you may have done such as having the files on an external drive. One or two sentences saying
Dear Mr. Lawyer type,

"I am in full compliance with your letter dated xx.xx.xx"

Sincerely, mahogs
posted by JohnnyGunn at 3:37 PM on May 16, 2008 [6 favorites]

I would send them the exact letter worded by JohnnyGunn.
posted by Meagan at 3:46 PM on May 16, 2008

I...have a friend, yeah, that's it...who was in a similar situation. The lawyer contacted the school, the school contacted...me... and what resulted was a meeting with the school official, in which I...I mean, my friend...signed a statement that saying I been briefed on the school's policies on the issue and the legal policies on the issue, and that the situation for which I was being accused had been explained. Never anywhere was there an admission of guilt or even knowledge of anything unsavory going on. Just an acknowledgment that I now understood the rules.

You really, really don't want to let anyone know that you had the slightest inkling that what you were doing was against any sort of rule.

I think JohnnyGunn penned an excellent letter.
posted by phunniemee at 4:12 PM on May 16, 2008

You are fine. Next time, don't make any admissions, OK?
posted by caddis at 4:16 PM on May 16, 2008

JohnnyGunn has it right; here's a reply I sent in what sounds like a similar situation:

A complete and thorough search has been done, and there is no such file on this computer. Neither the file mentioned below nor any other copyrighted material is now or will be in the future posted or transmitted. Thanks.

1. Admitted no wrongdoing
2. Acknowledged that the situation was rectified.
3. Promised to ('continue' to) do no wrongdoing in the future.
posted by TheManChild2000 at 5:56 PM on May 16, 2008

You might also like to submit the letter to Chillingeffects.org, a user-driven, user-focused clearinghouse for these C&D letters, founded by the Berkman Center at Harvard Law School. Even if you choose not to add your letter to the database, it's a good source of information.
posted by electric_counterpoint at 9:43 PM on May 16, 2008

Depending on where you are, it may be a very good idea to write "Without Prejudice" at the top of the letter.

A lot of people here are all saying the same thing: That you should never admit anything, be vague, etc.
I think it's terrible advice, but I'd like to know, does anyone have an actual legal basis for making such a comment?

Remember, IP Infringement is a civil matter, and NOT a criminal matter.

Generally, statements made during civil settlement negotations are not admissable in court. When you make a legitimate attempt to solve the dispute and compromise the claim, everything you say is protected from being used against you.

If you think about it, this rule makes perfect sense, and there's a reason that this rule is found in almost every legal system in the world. Dispute resolution would be nearly impossible since nobody would ever make a statement for fear of acknowledging liability.

This rule can be seen in Rule 408 of the U.S. Federal Rule of Evidence, ยง1152 of the California Evidence Code, etc.

Basically, the problem which COULD occur if you follow the advice mentioned by other people: By making such vague statements, a court will find that your letter was not written to help settle the matter and therefore the statements could be used against you in court.

Anyway, I hope this bit of information helps. If you want advice, you MUST contact a lawyer licensed in your jurisdiction, since the rules can vary significantly.

Finally, to move away from the legal issue and to be a bit more pragmatic, you probably don't have too much to worry about. From the looks of it, is most likely engaging in an attempt at specific or general deterrence. The purpose of these letters are to try and PREVENT you and others from engaging in the infringing behaviour in the future. I highly doubt they are trying to punish you or to seek compensation for losses.
posted by newatom at 11:52 AM on May 17, 2008

Remember, IP Infringement is a civil matter, and NOT a criminal matter.

Except when it IS a criminal matter.
posted by Lazlo at 3:47 PM on May 17, 2008

I am willing to comply and cooperate in any way that you, or the company that you represent, deem necessary.

Don't sign your name to a statement like this, especially right after admitting to wrongdoing. They could very well levy a gargantuan fine, one that could outstrip your future expected lifetime wages and force you to declare bankruptcy. Since you've already agreed to pay this fine or do anything else they require, you'd have a tough time getting out of it.
posted by ikkyu2 at 5:43 PM on May 17, 2008

Except when it IS a criminal matter.
The link you posted refers to commercial distribution.. take a look at the kinds of cases prosecuted under it. It is never used in 'personal use' cases.

But either way, even if it did apply, it strengthens my point even more. Legitimate settlement evidence(as long as the letter is sent as such) is probably inadmissable in a criminal case, should the feds decide to prosecute him(would never happen, but still). See: http://www.federalevidence.com/samples/Circuit_Split_Articles/Circuit_Split_SEP04.pdf
posted by newatom at 12:54 PM on May 18, 2008

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