Dear Readers,

Yesterday, after many, many repeated requests to ask SO and MS attys from the ARDC to email me all pleadings and don’t just drop them in the mail because the case is complex and I’d like to move it along, what do they do?  The same old thing and I get a pleading for a status call at 6 pm the night before.

IMHO only the worst of the worst counsel does this stuff.

90% of the time, counsel cooperates and decisions are made on the merits.  The stuff going on with the ARDC attys is apalling and very disappointing, is all I can say.

So what is their main excuse for infringing KDD’s and my copyright rights?  Fair Use.  That’s pretty interesting because I believe on my website there is a discussion of fair use and on my Denisonlaw Blog I have done articles about Fair Use and what they’re doing is clearly not fair use.

Take a look at the copyright office link to Fair Use:

Copyright Office Link on Fair Use

Fair Use is not clearly defined but I can tell you one thing, it is NOT favored by the courts.  The purpose of the Copyright Act is that everyone should put stuff in their own words and not repeat the words of others which constitute a creative expression and which are or may be commercially viable.

Note that even the Copyright Office strongly suggests that no one rely on the doctrine of “fair use” to avoid copyright infringement–ask permission first.

And today, for the most part, you can paraphrase, you can link.  In my/KDD’s case it is all published and the ARDC, when posting the complaint, could have simply linked to the original text or asked me for the links to avoid copyright infringement.

I’m glad I got a copyright registration and I do intend to file suit and ask for treble/enhanced damages for asking to strike the “Cease and Desist” letter rather than merely comply with the reasonable requests of the authors.

Again, I think this is all a slippery slope, the wedge with the edge.  The ARDC ignores the complaints, the pleas, the book John Wyman has written–everything that Wyman, Sykes and Bedin were courts run amok without jurisdiction which is a constitutional right every US citizen enjoys–against the government and they instead go an attack honest, ethical lawyers for repeatedly speaking out against the loss of constitutional rights and requesting that Congress and law enforcement DO ITS JOB and investigate.

Next, we have copyright infringement–a federal offense and watch your movie trailers and intros to see what the MPAA thinks of copyright infringement–it’s also a criminal offense entitling the claimant to $500,000 in statutory fines and attorneys fees.  Again, ARDC don’t blame me for this–blame Disney, the MPAA, ASCAP, BMI and national recording rights associations–they have more clout in Congress than all the ARDC’s put together because entertainment in this country is a $10 billion per year business.  And, FYI, if you infringe a copyright, the liability is ALWAYS also personal in nature because bars and restaurants, when failing to get licensed by ASCAP or BMI would simply close up and move and never pay infringment damages.  Now all corporate officers AND participants in the infringement are liable–personally liable.

The copyright statutes are a huge kick in the butt for everyone.  Recently, a 10 year old case against a teen for downloading and sharing 30 songs was denied cert by the US Supremes:

$675,000 Copyright verdict against teen/college student stands per SCOTUS

Supposedly the case is going back to the Appellate court to reduce this verdict, but the question is why do it in the first place?  Ask the author’s permission.  Link to an article.  Do anything, but don’t copy anyone else’s stuff unless you want to get sued for copyright infringement.  At it’s best, “fair use” is a bad defense.  And if the ARDC attys read closely, their activities really don’t fit squarely in the boxes allowed for Fair Use defenses.  They’re clearly a commercial operation taking in $400 time 83,000 attorneys in Illinois.  They could work out a license agreement.  They did not use a few sentences, but used 16 paragraphs.  They could have paraphrased, they could have linked.  They’re not educational, they’re not a bona fide NFP engaging in educational purposes.

The worst part of all of this is all of the participants, those that authorized the upload, those that knew it was up there and did not request it be taken down,–all personally liable.  And I’ll tell you another thing–if the Federal Court finds for infringement, which is a huge likelihood, then all of the defendants can have enhanced statutory damages personally charged against them, jointly and severally, plus attorneys fees.  If they don’t pay, then the matter goes to the US Marshall and everyone is arrested for copyright infringement until the defendants settle up with the copyright holder.

Aim of this lesson–DON”T infringe.  Ask permission first.  If you are sent a cease and desist letter apologize, take the stuff down and hope the holder does not sue or the judge awards only a few thousand statutory damages plus attorneys fees.

JoAnne