[Big Mac]

I'm looking for some opinions from lawyers, law students, paralegals or legal eagles. Here's the situation: An organization I work with and for knows of a competing, marginal entity (that's really nothing more than a web front), which is stealing essentially word for word some prominent copyrighted text from my organization. It is annoying to us. I know we could send a C&D letter, but things would most likely quickly escalate from there. If we were to sue, I'm pretty sure they would fold quickly enough, but we don't have the resources to spend on a lawsuit and certainly not on litigation (although I'm almost certain that it would not go that far). If we were to come into more resources to devote to legal matters, we would consider it, but it's not something we can deal with right now legally.

Now I know of the legal doctrine of "laches" (not "latches" as I thought it was spelled), namely that if a rights holder isn't vigilant in protecting rights to property, the exclusive right to said property can be diminished or nullified completely. However, I have only seen it referenced in relation to trademarks, not copyrights. I asked one of our lawyers this question and he didn't get back to me, but he said we should really only consider litigation of such things if we're prepared for the costs or if they're stealing huge amounts of money through their infringement. So, can the doctrine of laches apply to copyrights? And if so, how long do we have to act (generally speaking) before it could be applied; is there any way our copyrighted material can be protected without spending an arm and a leg?

edit: I got some PM help on this question that was really helpful.

[OreoCookie]

I'm not a lawyer, but my dad is one He always says `He who writes, stays.' (It rhymes in German.)

I would start by sending them a physical letter (not just an e-mail), asking them to stop using your copyrighted texts. If they don't, you reserve the right to take this to court. Avoid threats (other than that you are reserving the right to enforce your copyright). That costs only the stamp and the paper. I'd see how they react.

If you decide to take it further, you can document you have tried to enforce your copyright and that you have given them the chance to remove the text before suing.

[Big Mac]

That sounds logical and reasonable. I hope actual American law is as sensible. Thank you for the input, OC.

Based on what I've learned from the PM I got, we should theoretically be in the clear for now as far as preserving our rights goes.

[Person Man]

Originally Posted by OreoCookie 

He always says `He who writes, stays.'

"Wer schreibt, bleibt?"

[OreoCookie]

Yes, exactly.

[olePigeon]

Originally Posted by OreoCookie 

I would start by sending them a physical letter (not just an e-mail)...

Send them a registered letter so they can't claim they never got a letter from you in the first place.

[Big Mac]

They already know about our objections to using this text (since it was raised with them unambiguously when they started using it originally, and we can prove that through a long email trail) but they choose to use this content anyway. I just don't want it to escalate to the point where we're forced to sue (i.e. them becoming even more brazen in their infringement); right now the status quo is preferable to spending a fortune on litigation. I think I've come up with a happy medium, however. I think what we will do is draft a cease and desist letter, explain within it our attempts to defend our property and the cause of our hesitancy to send this letter directly to them, then mail that letter to ourselves and keep it filed away in the event of future litigation.

[OreoCookie]

If the organization is a charity, perhaps you can find a lawyer that does this pro bono. Perhaps a letter drafted by a professional using the stationary of a law firm helps? I doubt there is much you can do without it -- if you have already contacted them and asked them to stop.

[Big Mac]

Yes, we will be looking for some pro-bono help in the near future. We really need an attorney who can commit to a sending them a strong cease and desist and then following through with a lawsuit (which I think I could possibly draft myself) if they don't comply. This will actually help us because one of the things we need to do is bolster our attorney contacts not only for us but those who come to our organization with legal needs. But yeah, it's going to take more than a single letter - they need to be afraid of serious legal consequences to get them to budge. I hope it won't have to wait for me to go to law school and do it myself.

Thank you again for the ideas (and for the PMs). The Forums truly are a terrific resource for all sorts of issues.

[ghporter]

While you look for an attorney, remember that a paper trail beats an email trail every time. Send 'em an actual, physical letter (which can and should include reference to your long, extensive email traffic history), and include that you will take legal action if they persist. Send it registered mail. Do it tomorrow. That'll give your soon-to-be attorney something useful to work with.

[reader50]

I'm inexperienced in lawsuits, so take this with a grain of salt.

If you are to the point where legal action will be required, then anything you say (or mail) to them should be approved by your lawyer first. Just in case they ended up contesting. You will want to avoid mistakes, correcting them in the courtroom might get expensive.

[Buckaroo]

Plus, I'm not sure, but I believe your lawyer should be able to throw together a C&D letter on his letterhead for a couple hundred dollars. That should be enough to scare him. Just the fact that it came from a lawyer can scare them.

[Big Mac]

Originally Posted by ghporter 

While you look for an attorney, remember that a paper trail beats an email trail every time. Send 'em an actual, physical letter (which can and should include reference to your long, extensive email traffic history), and include that you will take legal action if they persist. Send it registered mail. Do it tomorrow. That'll give your soon-to-be attorney something useful to work with.

I would do it if I thought they would budge, but for now I will send that kind of letter to myself and file it away.

Originally Posted by reader50 

If you are to the point where legal action will be required, then anything you say (or mail) to them should be approved by your lawyer first. Just in case they ended up contesting. You will want to avoid mistakes, correcting them in the courtroom might get expensive.

Yes, that's true. I think I have a pretty good handle on things, but I will review any serious legal action with an attorney beforehand.

Originally Posted by Buckaroo 

Plus, I'm not sure, but I believe your lawyer should be able to throw together a C&D letter on his letterhead for a couple hundred dollars. That should be enough to scare him. Just the fact that it came from a lawyer can scare them.

Yeah, it would normally speaking likely be enough, but these clowns disregarded not only our lawyer's original demand about it but also their own lawyer's advice to them on this very issue. He was one of their biggest backers but even he washed his hands of them quickly enough. Past experience with them teaches me that when we do handle this in the future we're going to need more legal muscle than a single C&D. I just don't want to escalate things until we're ready because they could be emboldened if we raise the issue again before having the legal power to compel them into compliance. At least now through the Forums I have learned that laches should not apply because we have proof of our attempts to resolve this when it first came up, and I will generate further documentation of it as time goes on.

Btw, thank you very much to whichever admin fixed the spelling of laches in the title of this thread.

[Andrew Stephens]

If you give up now are you not in effect saying that you permit the usage? I would send a letter that explicitly states that you reserve the right to initiate legal action at any date in the future and you specifically do not regard their continual usage as acceptable.

If you delay to much they may well be able to claim that you knew all about the usage but your silence on the matter after the initial flurry of letters implied consent.

I think you need to spell it out, and keep spelling it out.

[Big Mac]

You bring up a lot of good points, Andrew, but I very graciously got a PM that informed me quite a bit about the law in this situation. It seems that the law is on our side even if we don't press the issue repeatedly. We already informed them that they were violating our rights when they started doing so, which of course appears to be at least somewhat important. Secondly, the clock only seems to start rolling if the infringer is misusing the copyright in order to sell products carrying it, which they are not doing. The law says, "delay in bringing a lawsuit is not unreasonable where, prior to the time of suit, enforcement of copyright was not worth cost of litigation since no infringing product was on the market." But perhaps most importantly, the law says, "Laches is inapplicable where defendants are not innocent infringers." They are not innocent infringers. They definitely know they are violating our copyright and other substantive rights (which I don't want to get into because there's the slight possibility that that could give away who I'm talking about) and persist anyway, so laches is inapplicable.

Obviously we don't want to let it go too long, and we have to pounce if they start selling a product with it, but it's not something that we have to deal with immediately. Again, the risk in raising the issue with them again is that they could find that we are unable to follow through with legal action, which could embolden them to infringe on our core intellectual property. That would be a far worse situation than even losing our copyright to this particular text because I would have to possibly bring an action against them Pro se in such a scenario - unless one of our lawyers were to step up and assist for little compensation or until I become a lawyer myself.

[Andy8]

You could copy your C&D letter to their hosting company also and squeeze them from there perhaps.

[Big Mac]

Yes, I fully intend to do that when we get to the point of having sufficient resources to carry the action through. Otherwise, they can send a fraudulent counter-notice and get their service reinstated. But thank you all for your suggestions.