July 29, 2009

An Author / Attorney Protects His Copyright By Harvey Randall

Chapter I

It was a pleasant Sunday afternoon when I began scanning one of the several Internet law blogs that I read with some degree of regularity.

The post happened to be a bit longer than normal and as I scrolled down I noticed a reference to two of my books published by BookLocker in the blog's right sidebar. Thinking that this might be a link to BookLocker's site on which these books are listed or, perhaps, a review by a reader, I clicked on the first title, The Discipline Book.

Instead of a link to BookLocker, which publishes a number of my books, or a review, I was greeted by the book's title page. Hmmm, I thought as I scrolled down, perhaps the blogger has posted some examples from the text. Not so, I quickly learned. Instead of seeing a review, or a link to BookLocker, or an excerpt or two from the book, I was confounded to see the entire text of the book, all 564 pages of it, posted on the site.

Clicking on the link to the other book posted, The Discipline Book - 2009 Supplement, I was instantly transported to the full text of this book as well, all 232 pages.

This, I thought, was stretching the "fair use doctrine" a bit far and I decided to confront the copyright violator or, as writers of my favorite detective novels might say, the "Perp."

I was able to ascertain several e-mail addresses posted on a number of the web sites being used by the Perp and I immediately sent an e-mail to each one of them.

The e-mail stated that I had noted that the Perp had posted the entire contents of The Discipline Book and The Discipline Book - 2009 Supplement on the Internet at various sites -- that I then listed -- and that there were a number of links -- that I also listed -- on websites maintained by other bloggers to the text of these books on the Perp's website.

I also informed the Perp that "The Discipline Book and The Discipline Book - 2009 Supplement are copyrighted and you do not have the copyright owner's permission to post either or both of these works on the Internet."

I then wrote: "Please remove The Discipline Book and The Discipline Book - 2009 Supplement from your website and from all other locations and websites and, or, eliminate links providing access to these copyrighted works immediately and confirm that you have done so and the date on which you took such action."

Finally, I asked the Perp to confirm "that The Discipline Book and The Discipline Book - 2009 Supplement has been removed from your website and from all other locations and, or, links that you have created to publications@nycap.rr.com."

Not hearing from the Perp, I sent another e-mail, to which I attached an Invoice for $75,000 as charges for the unauthorized use of these copyrighted works.

~~~~~

This e-mail read as follows:

Dear [Copyright violator]:

This supplements my earlier e-mails to you concerning your several violations of Copyright Law with respect to The Discipline Book and the 2009 Supplement to the Discipline Book.

In that no permission to republish, resell, reprint, reissue or redistribute these materials, with or without charge, was granted to you, or to your representative or agent, nor was approval to post these publications on the Internet, in whole or in part, in any form granted to you in connection with, or as the result of, your acquiring copies of these copyrighted publications, I have attached our Invoice billing you for your unauthorized postings and your publication and distribution of Public Employment Law Press copyrighted materials for the period August 24, 2008 through and including July 19, 2009 on various sites on the Internet.

Our earlier e-mail of July 19, 2009 demanding that you immediately remove these materials from the Internet, including links to such postings, remains in full force and effect.

Harvey Randall
Editor and General Counsel
Public Employment Law Press

The Invoice that was attach to this e-mail is set out below:

I haven't had a response to this e-mail as yet, but I am considering my next step should it necessary to take further action.

Clearly I could initiate a civil law suit alleging infringement of my copyright and seek damages and other relief. However, a cursory consideration of the Perp's probable economic situation suggests that this would be an exercise in futility considering the costs involved in litigating such a complaint and probable financial inability of the Perp to satisfy any monetary award granted by the court. My conclusion: initiating a civil action would be unproductive.

There are other courses of action available to me, however.

For example, the New York State Penal Law (the Perp is a resident of New York State) provides as follows:

156.30 Unlawful duplication of computer related material in the first degree.

A person is guilty of unlawful duplication of computer related in the
first degree material when having no right to do so, he or she copies,
reproduces or duplicates in any manner:

1. any computer data or computer program and thereby intentionally and wrongfully deprives or appropriates from an owner thereof an economic value or benefit in excess of two thousand five hundred dollars; or

2. any computer data or computer program with an intent to commit or attempt to commit or further the commission of any felony.

Unlawful duplication of computer related material in the first degree is a class E felony.

It should be noted that subdivision 9 of 156.00 of New York State's Penal Law provides that "the term 'Felony' as used in this article means any felony defined in the laws of this state for which a sentence to a term of imprisonment in excess of one year is authorized in this state."

If the situation is not resolved to my satisfaction I probably will ask the District Attorney having jurisdiction to initiate criminal action against the Perp as New York is quite serious in addressing this type of crime.

In fact there is a computer and technology investigations unit in a New York City D.A.'s office headed by an Assistant District Attorney, David Frey. Mr. Frey has written an article about this aspect of the law that is posted on the Internet at:

http://www.law.com/jsp/legaltechnology/PubArticleFriendlyLT.jsp?id=1202426879665

For those interested, here are some Internet links to States having laws on their books, as of the date of this writing, that may be applicable in situations such as the one I am experiencing:

+ Alabama
+ Alaska
+ Arizona
+ Arkansas
+ California
+ Colorado
+ Connecticut
+ Delaware
+ District of Columbia
+ Florida
+ Georgia
+ Hawaii
+ Idaho
+ Illinois
+ Indiana
+ Iowa
+ Kansas
+ Kentucky
+ Louisiana
+ Maine
+ Maryland
+ Massachusetts
+ Michigan
+ Minnesota
+ Mississippi
+ Missouri
+ Montana
+ Nebraska
+ Nevada
+ New Hampshire
+ New Jersey
+ New Mexico
+ New York
+ North Carolina
+ North Dakota
+ Ohio
+ Oklahoma
+ Oregon
+ Pennsylvania
+ Rhode IslandX
+ South Carolina
+ South Dakota
+ Tennessee
+ Texas
+ Utah
+ Vermont
+ Virginia
+ Washington
+ West Virginia
+ Wisconsin
+ Wyoming

Chapter II

The day after I sent the e-mail and the Invoice, I received the following one word response from the Perp via e-mail.

"Removed"

However, this proved to be somewhat optimistic on the part of the Perp, which resulted in my again e-mailing the Perp.

This e-mail, in relevant part, is set out below:

Perp-

"We have, today, July 21, 2009, investigated your representation in your e-mail of said date that The Discipline Book and its 2009 Supplement postings on the Internet and related links have been removed."

I then noted that I had found that the text of both books were still posted on the Perp's website and that there were still active links to that site from other blogs and websites. Accordingly, I e-mailed the Perp, calling the Perp's attention to this, and said:

This is to advise you that the New York State Penal Law provides as follows:

I shall defer taking further action in this matter until that date.

Harvey Randall
Editor and General Counsel
Public Employment Law Press

Chapter III

I received a practically instant response to my July 21, 2009 e-mail from the Perp.

In fact, the Perp's rather lengthy e-mail was transmitted at 11:28 p.m. on July 21, 2009.

In pertinent part, the Perp said:

1. "I believe I have removed the links to The Discipline Book and The Discipline Book 2009 Supplement that appeared on my blog " and my website".

2. "I contacted [sites where there were links to the website] and asked [that they] remove [the links] as well".

3. "I had no intention to do anything such as [violating your copyright], and I am willingly correcting my mistake ".

4. "Please accept my alleged error in posting the online books that I bought, and please notify me of any online posting on my website or blogs so that I can immediately remove all links "."

The lesson here is that if there is an infringement of your copyright, a clear statement of the offense alleged and a simple statement of the remedy you demand may be effective in obtaining the desired results. Otherwise you will have to determine if initiating a more aggressive course of action would be economically productive.

No word yet as to whether the Perp intends to pay the $75,000 Invoice.

Harvey Randall, a public personnel law consultant to attorneys, formerly served as Director of Research, NYS Governor's Office of Employee Relations; Director of SUNY Personnel; and Counsel, NYS Department of Civil Service. In addition, he served as Staff Judge Advocate General, New York Guard. Currently, Randall is the Public Employment Law Press editor and general counsel.