What should I do if accused of copyright infringement? 6 Answers as of January 07, 2011

I recently got in touch with some wholesalers from China and they told me that they sell a very expensive software at a very cheap price. so i thought I could make some money selling those. I put many ads on Craigslist advertising that i am a wholesale dealer selling the product. My plan was that if someone order that from me , i would i have one of the wholesalers from china ship the product straight to them and get some money out off the deal. some people contacted me about the product but we never went all the way through. i was not able to sell any. I recently received an email accusing me for piracy. the email says that i violated the copyrights. I contacted the people and and explained them the situation and they told me that even though i never sold any, i violated the copyrights just by offering the product online. they asked me to pay some money and they will drop the case. if not i will be in big troubles. Am i really in trouble?? what should i do?

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DANIEL NESBITT | Hasse & Nesbitt
Infringement occurs when a person violates any of the rights of the copyright owner enumerated in 17 USC 106. Contact a copyright attorney for specific advice.
Answer Applies to: Ohio
Replied: 1/7/2011
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
We haven't seen any copyright cases specifically dealing with a mere offer to sell. But, the rights protected by copyright are:

(1) the right of reproduction;
(2) the right of adaptation;
(3) the right of distribution;
(4) the right of performance;
(5) the right of display; and
(6) the right of perform by means of a digital audio transmission.

The distribution right accords to the copyright owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. ..." The copyright owner thus has the exclusive right publicly to sell, give away, rent or lend any material embodiment of his work. Note that it is not any distribution of copies or phonorecords that falls within this right, but only such distributions as are made "to the public." Thus, infringement of this right requires an actual dissemination of either copies or phonorecords.

As such, a mere offer to sell would appear not to implicate the right of distribution.

Depending on the surrounding circumstances, a mere offer to sell could implicate the right of reproduction, since the person offering to sell might have made an infringing copy to be sold. The reproduction right consists of the exclusive right "to reproduce the copyrighted work in copies or phonorecords." "Copies" and "phonorecords" consist of material objects in which the work is fixed. It is only the reproduction of such material objects that is encompassed in the reproduction right. There may be copying in the generic sense that does not result in any such material object. Such copying may infringe one of the other rights accorded to the copyright owner, but it is not an infringement of the reproduction right.

Thus, depending on the surrounding circumstances, one of the rights of adaptation, performance, display, and to perform by a digital audio transmission could be implicated by a mere offer to sell.

In your specific case you might ask the accuser for their copyright registration number. If the work is not yet registered, there would be no damages or attorneys fees anyway for a mere offer to sell. If they persist, then you should see an attorney.
Answer Applies to: California
Replied: 1/6/2011
Handal & Morofsky LLC
Handal & Morofsky LLC | Anthony H. Handal
On its face, Section 106 does not help the plaintiff very much. More importantly, you delivered no product, so damages may make it imprudent for the copyright owner to pursue you. However, the copyright owner cannot verify your claim very easily, and so he may choose to file an action. You should seek the help of a lawyer experienced in intellectual property litigation.
Answer Applies to: New York
Replied: 1/6/2011
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
I would ignore them. If it were a patent you can get into trouble just for offering to sell a patented invention, but if it is copyrighted that is not the case. Also since you did not import anything you have not done anything wrong yet. Look at the copyright act sections 106 to 120.
Answer Applies to: Oregon
Replied: 1/6/2011
Young Basile
Young Basile | Denise Glassmeyer
You should retain a lawyer to review your case and give you advice specific to your particular situation.

The exclusive rights granted to a copyright owner are the rights to reproduce copies, prepare derivative works, distribute copies of the work, perform the work publicly, publicly display the work or copies of the work, and transmit the work via digital audio transmission.

From the facts you have provided, you appear to have been offering a product for sale but did not go through with any transactions. The fact pattern indicates that you were offering counterfeit goods. Just because no sale was completed does not absolve you from liability.

Retain a lawyer who can assist you in this matter.
Answer Applies to: Michigan
Replied: 1/6/2011
    Michael M. Ahmadshahi
    Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
    In general, offering to sell copyrighted material is not an offense. However, under the DMCA (Digital Millennium Copyright Act) offering to sell certain software that are used primarily to circumvent technological measures for preventing piracy is an offense. Depending on the circumstances of your case it may be preferable to settle the case out of court which may involve paying a small fine to the copyright owner, otherwise it's best to consult an attorney.
    Answer Applies to: California
    Replied: 1/5/2011
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