[knight01]

I'm shocked it hasn't been brought up, so I'll ask.

There have been several discussions recently regarding copyright issues.

1. Generally speaking, how do copyright laws impact affiliate marketing. Can an affiliate use the 'fair use' doctrine to post part or all of a story, recipe or article that was originally created by someone else? It's likely impossible to say exactly how much of the original document can be posted, but some general thoughts on what needs to be done to stay within the word and spirit of the copyright law would be greatly appreciated.

2. What recourse would an affiliate have if some or all of their original work was used by a merchant? I'll let others get into the details. (Hardaka, you're up:))

[Hardaka]

I've actually PM'ed IA about number two already, lol.

But a general answer to that question would be good for the other affiliates who were stolen from, or future ones if they have the same problem happen to them.

[internetattorney]

I've actually PM'ed IA about number two already, lol.

But a general answer to that question would be good for the other affiliates who were stolen from, or future ones if they have the same problem happen to them.

I'll get to #1 later, but for #2, my response would be that it really depends on specifics. How much did they copy, what exactly did they copy, etc. However, without knowing more, and speaking in generalities, a demand letter may be a decent course of action if you absolutely wish to push this further. If companies acknowledge they are guilty of trademark or copyright infringement they may be willing to meet somewhere in the middle if prompted by a well-written demand letter.

Keep in mind that filing a lawsuit is expensive and the time to hire an attorney (which are usually retained on contingency fees ranging up to 40%) can be spent on other things - like growing your business.

Also, keep in mind, though, that sending a harsh demand letter could jeopardize your working relationship with the company in the future and could leave you worse off than if you had let things be in the first place.

-IA

[Hardaka]

Also, keep in mind, though, that sending a harsh demand letter could jeopardize your working relationship with the company in the future and could leave you worse off than if you had let things be in the first place.
At least in my situation with Danmer, there is no working relationship. They made sure to treat maybe one of the only affiliates willing to work aggressively for them after they stole from us (and had quite a bit of bad PR) like total crap. I'd love to burn them for everything I could.

So I don't need to worry about working with them in the future, though the second part is good advice too. Don't want to make any demands based off emotion, but I definitely don't want to let them get away with their behavior either.

[rematt]

Don't want to make any demands based off emotion, but I definitely don't want to let them get away with their behavior either.You were wronged and you're angry. I would think that it would be hard for it not to be an emotional issue and I think that you and the other affiliates that were involved handled the situation very professionally.

But don't discount the damages that you feel are owed to you just because you acknowledge your emotions.

-rematt

[Hardaka]

Definitely not discounting. I just need to figure out what I can rightful claim I am owed. And also sent a PM to the former OPM to find out who at Danmer I should be contacting when I figure that out.

[Hardaka]

I just thought of something else.

And Haiko, I don't know if this should all be one thread, maybe Danmer deserves its own thread and this thread should be split? Sorry IA, you arrived while there was a legal storm going on, lol.

Just a quick wrap up:
-Danmer posts content for all affiliates, copied from current affiliate websites.
-Danmer claims this was done by a freelance writer it hired.
-Danmer refuses to name the freelance writer, who they paid, for stealing our work.
-Danmer offers a bump in commissions as compensation.

The thing I just thought of, and I don't remember if this was mentioned, but since Danmer basically covered up for the writer, doesn't that increase the damages we can ask for?

I'm not a lawyer, but if you refuse to tell the police the identity of someone who committed a crime, that is also a crime, correct? So while I think this is more a civil matter, covering up only helps increase our damages, maybe?

[internetattorney]

Covering up doesn't really have much to do with assessing damages. A fairly good primer on copyright infringement remedies can be found at:
http://www.ipwatchdog.com/copyright/copyright-infringement-remedies/

The actual code for copyright infringement remedies can be found at:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504----000-.html

In short, you'll need to show either demonstrated pecuniary (money) loss from what the company did, or find a remedy statutarily.

On a side note, other tactics could be contacting the company's ISP, or other partners the company works with.

A strongly worded demand letter here really appears to be the best option.

-IA

[Hardaka]

Thank you for those links. I couldn't for the life of me find anything like that while searching google.

About the covering up. If I'm not mistaken, after reading that, I am entitled to Statutory Damages from the freelance writer, since he willfully stole and sold my work, correct? So if Danmer doesn't disclose his indentity, wouldn't Danmer be liable for those damages, since I can't go after the writer they are protecting?

But I sent a demand letter now, saying I wasn't sure what I wanted in a settlement yet (hey, honesty is a good thing, right?), but I did ask for the name of the freelance writer. So if what I wrote above is correct, then what I can ask for changes if they'll disclose his name to me or not.

Hopefully that doesn't make me sound too clueless, lol.

Edit: Err.. whoops.. missed this part.. "In order to receive either statutory damages or attorneys fees it is necessary to file for federal protection immediately upon creation, but in no event later than three months after publication. ..yeah, very clueless. So having not done that, I can't look for Statutory Damages it would seem?

[AffiliateHound]

But I sent a demand letter now, saying I wasn't sure what I wanted in a settlement yet (hey, honesty is a good thing, right?), but I did ask for the name of the freelance writer. So if what I wrote above is correct, then what I can ask for changes if they'll disclose his name to me or not.
If you sue Danmer, you can require them to disclose the identity of the writer in discovery, which could not only include stating his name, address, telephone, email, etc. but to turn over any documents between them and this person, and to describe in specific detail any and all instructions that they gave to him.

[Hardaka]

but to turn over any documents between them and this person, and to describe in specific detail any and all instructions that they gave to him.
Maybe there is something to be found there, which is why they didn't want to give us the person's identity? That could be interesting.

I'm hopeful though I don't have to take this to the level of a lawsuit. They sound like they can get expensive, but I'll see how Danmer responds to the email I sent. If I need too, I can always see if my father's lawyer friend would be willing to waive some fees for his friend's kid since he already is rich, lol. Maybe I should have had my dad contact him this past week, but while I had been angry, I'm willing to give Danmer a chance to avoid the mess a lawsuit could cause. So their response will dictate my next move.

[Drewbert]

IANAL, but Im pretty sure "fair use" only covers non-commercial use of someone else's copyrighted material.

[Mr_C]

In short, you'll need to show either demonstrated pecuniary (money) loss from what the company did, or find a remedy statutarily.


Can you show in the code where it says that? I see this:

In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Which I interpret to mean copyright owner does not need to show loss, but instead needs to show infringer's profit, unless copyright owner opts for the statutory route:

the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually,

Although if I read things correctly the copyright holder does need to show intent to infringe, which I think might be the tricky part of the Danmer issue since they claim to have relied on someone else.

PS: Thank you internetattorney for your input and, Haiko, this is a darn good thread to have.

[Mr_C]

I just wanted to share two more interesting/useful sites I found regarding this issue. (They're purely informational, I have no relationship with them)

http://reliableanswers.com/pc/dmca.asp
http://www.plagiarismtoday.com/stock-letters/

[Hardaka]

Well, it is looking quite likely that I will have to get a lawyer.

The guy from Danmer I've been in email with has been giving me the run around. Really pisses me off. I've been trying to be friendly and settle this so both of us could be satisfied, and he refuses. Or throws gibberish in his replies.

So far:
-Refuses to name the thief.
-Refuses to offer anything.

This is so stupid.