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textbook publishers are suing me

Discussion in 'Copyright, Trademark, Patent Law' started by pleasehelpme12, Aug 9, 2008.

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  1. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    home state: GA

    textbook publishers filed a lawsuit against me in manhatten, new york. this came after their outside counsel (not the publishers own legal team) sent me a cease and desist letter.

    their letter alleges i infringed on their copyrights. however, they do not specify, at all, what was being infringed. its like one page, with the publishers names, saying i need to stop, that i agree in writing that i have stopped and that i provide them with accounting information.

    i agreed with them, gave them what they wanted. they then decided to file a lawsuit anyways. so now i am calling asking to settle out of court because attorneys in new york are like $15,000 (just a retainer). just to defend the case is way too expensive.

    their lawyer has been pretty intimidating, its been months and he doesn't answer his phone or he 'isn't around'.. when i finally get a hold of him, he says that i need to give him my bank statements... or else he'll get them another way.. to help determine a settlement.

    i have looked them up and the same attorney seems to have filed many cases exactly like this. i just feel absolutely bullyied. i mean the publishers never tried contacting me. they easily could have done this in a more arbitrary sort of way. they're a multi-billion dollar company picking on a kid.

    the merits to their case is absolutely ridiculous. they are alleging photocopying and distribution, which is not true. but i was saying where someone could find this material, and i guess could be contribitory?
     
  2. seniorjudge

    seniorjudge Super Moderator

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    Let's start at the top.

    What is it that they said you did?
     
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Sounds to me like their lawyer is asking you to make their case easy for them. I don't know what you already handed over to them, which doesn't exactly help you without any promise of settlement. It may aid you in the event you do go to court if you were duped by a lawyer into thinking that if you gave them what they wanted then all claims would be dropped. Evidently the lawyer is rather convinced that you did commit the dirty deed and you handed to him a good deal of the evidence he'll use to prove it.

    First, I'm not sure the publisher has the right to sue you in New York. Did you have any relationship with New York with regard to this case? Second, if you do choose to appear and fight, perhaps you'll need to do this on your own, pro se, and hopefully that will promote a settlement. Third, the attorney wants you to give him your bank accounts so he can determine how much money they can sue you for since you can't get blood from a stone.

    Best of luck to you.
     
  4. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    response

    thanks for the suggestions on the matter. all the cease and desist letter says is that i 'engaged in illegal sale of their instructor solutions manual' ... the complaint alleges that i photocopied these items then engaged in unlawful sale of such material. both are untrue and inccurate but not entirely frivolous.

    i'm not sure if it could be established if i had any relationship in new york. none of them do business there, i don't live there, and to the best of my knowledge and the information available nothing has transacted there. however, i have read new york's long arm statute and another case established 1 transaction can give new york proper jurisdiction over the matter. i also am not sure if i can get it dismissed if the plaintiff argues in 'good faith' until all information is available to prove otherwise. well, i am not much of a gambler, and prefer not to get my case defaulted. they said they have to know what i know for a fair settlement. since they file many of these cases, i think they know what they're doing to make it as expensive as possible. lastly, can they either legally or ethically get those statements? can i go to the court and say 'hey, they're trying to extort me'? can i go to the american bar, say the same, and get some kind of justice? can i talk to the plaintiffs directly? why don't they just take care of it?
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    How are these guys trying to extort you? If the suit isn't frivolous then they have a case. If none of the merits are true then you can simply tell them to take you to court and prove their case. Then it's up to you to decide whether you want to appear. You can always contest jurisdiction and make an appearance solely to challenge it. However, if you lose, you're stuck to defending there and perhaps that's a gamble you want to take. The more effort it takes for a plaintiff the more likely they are to settle. If you insist you didn't do anything wrong then they have to prove it and will spend many dollars to recover almost nothing and you can tell them that.
     
  6. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    how? if they are basing their settlement purely on how much 'blood from a stone' they can get isn't that a little unjust? i talked to the plaintiff's attorney last friday and they made an offer to me of about $16,700 to settle the case. they said they had like $11,000 in attorney fees. they also said that if i was going to contest it, they could get up to $150,000 per violation for infringement since they said any idiot could tell its copyrighted. although i believe i didn't do anything wrong, it could be contributory infringement.. but they don't care, they'll said they're planning on going to trial and let the court decide. in their settlement plan is to do monthly payments until i get out of college...

    kinda wish the recording industry was picking on me instead. their settlements are no more than $4,000.
     
  7. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    If they are asking to settle the case for $17K because they have 11K in attorneys fees, I'd write that down. I would tell the lawyers that I'm sure the client and the court would appreciate the fact that they are claiming you did at most $6K worth of damages but somehow the attorneys fees are going to be tens of thousands of dollars for filing a case. It sounds like they are pushing you to sign for the most you can and seeing if they can push your limits. I don't know why they are picking on you but you must have done something to attract their attention. Consider that what you've done may have cost them more and you haven't exactly told us the full extent of what is going on. My guess is that the damages you caused may be worse than you realize.

    You might do well telling them you'll go to court since you were willing to settle for the damages you caused, e.g. $3-4K if that's reasonable. But this has never been about settling for what is fair and more about piling on - attorneys trying to pile up the fees to collect from someone since the client obviously wouldn't pay a $25K fee for a $3K in damages case you were willing to settle. This is the art of negotiation, in letting the attorneys know that they might look foolish when trying to "show the work" to a judge that they didn't even have to do. Good luck.
     
  8. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    can i use these numbers if we are discussing things over the phone? i thought they were confidential. they have four clients (textbook publishers) and i don't know how intimately involved they are in this sort of thing or if the attorney takes care of it all. their clients never contacted me, never warned me with what they thought would be a problem. just their attorneys sent a letter then filed a lawsuit shortly thereafter. i need to talk to the judge, my response to the complaint was returned to me in the mail with the filing fee. i guess it needs to be filed electronically? the clerk in SDNY helped me get some kind of electronic account to file it.

    in response to what i was doing, allegedly i was offering for sale e-copies of some of their textbooks for a few dollars. i was actually suggesting where it could be found online if they (buyers) were interested in paying to find it out where is. the method of payment was made with paypal. they claim some like 50-60 material was infringed by me.

    i read some similar things about individuals like me online. the plaintiffs' attorney files the same complaint over and over except changing the defendant's name/address/aliases, etc. and using some itemized list of infringing materials pertinent to the case. there's like 50-60 of these filed, by the same attorney for the plaintiffs in SDNY. the way they establish infringement is to buy the material from the defendant.

    i guess these publishers have some kind of 'program' for what they call as policing this material. they're (their agents) are online looking to buy this stuff from sellers and even provoke people to buy it. i'm quite disappointed that their primarily, aggresive method is to 'shoot first and ask questions later' attitude rather than simply contacting me. is it possible than i can contact them (the textbook publishers)? is this something the media would be interested in?
     
  9. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Do a search for "contributory infringement" - this is probably what they are hanging their case on:

    -By contributing to an activity that is "infringing", the plaintiff doesn't have to prove that the defendant actually or actively engaged in the underlying infringement. This action is a part of the theory of "vicarious liability."

    - For a success case of contributory an infringement, the plaintiff must demonstrate:
    1. that copyright infringement took place
    2. the defendant knew about the infringement and induced, caused or materially contributed to the copyright infringement.

    There is a mental state (e.g. knowledge) with regard to the defendant's awareness of the infringing activities and it would seem that your taking payment for a link could easily establish this.
     
  10. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    thelawprofessor,

    thanks for all your advice. i decided to settle the case out of court. it was too much that i couldn't find an attorney. after trying responding to the complaint it was returned back to me as it needs to be filed electronically, which i dont know how. the attorney, however, said the case could be settled for $27,000 and not $17,000. since the older offer expired or as he said 'was no longer good'. something about attorney fees. i don't see how they were damaged $27,000 since they all made record profits. additionally, the items linking were directly to one of the publishers website (where they actually had the entire PDFs posted). but the attorney didn't care and kept with his rhetoric from before. they [the publishers] exceeded their target (and potential) profits for the year by several tens of millions. so... i have no explanation. they didn't even ask for an apology.

    since school is starting for me, it just seemed logical to get this out of the way. but i dont have any money and likely will be broken up into payments. so can i contact the publishers directly (not through their outside counsel) to negotiate or re-negotiate settlement option?
     
  11. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    i guess justice was done today...

    i forgot to ask but is it legal to release or give out information regarding settlement agreements? such as emails from the plaintiffs attorney regarding where i could get the money from?
     
  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    You must get a lawyer to review your settlement agreement or the lawyers will take you for a ride. Do NOT sign anything until a lawyer reviews it. These agreements should have confidentiality provisions amongst other essential terms. Good luck to you.
     
  13. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    Thanks. I had a lawyer look it over and he thought it seem standard. He had me sign it. But then I noticed there were provisions that he said he'd have changed.

    so now i've been sending payments with a check in the mail via certified mail. but i am worried that the advasary attorney will claim, "oh, I got the letter... but there was no check inside... time for another lawsuit for breach of contract kid!" since it would be to his benefit to get even more money.

    what is the best way for me to send money? it was agreed i send payment to him at his firm's trust account. if i had to contest a breach of contract by him, since i sent it confirmation mail (signature required) and photocopy it (the check and letter), could my arguement stand up in court? or do I have to be absolutely sure that the money from one place got to another by a third party entity?
     
  14. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Keep track of the checks you send including number. Make a copy of the check and send it with your certified letter. It would be incredibly dumb for an attorney to lie about not receiving a check and that issue can be easily remedied if he contacts you that the check somehow wasn't in the envelope.
     
  15. pleasehelpme12

    pleasehelpme12 Law Topic Starter New Member

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    There are provisions in the agreement to give them authority to register a judgment against me, go after accelerated payments and etc. if I should fail miss a single payment.

    So I think that attorney would like that better than having me send checks every month until I’m in my later 30s (that’s a long time!)

    Another defendant (same type of case, attorney, plaintiff, etc.) seemed to have troubles e-mailing his interrogatories back to the same attorney. The attorney claimed to never have received them. So he tried faxing it, he had a fax confirmation return with ‘OK’ on it as if it was faxed. The plaintiff’s attorney filed a motion for summary judgment and filed a motion to compel. This is all part of the court opinion I was reading at the county law library.

    According to the court opinion, the attorney did not acknowledge whether or not he received the interrogatories via fax but that the defendant didn’t comply with the order. It also stated that the defendant try again, fax it and send a hard copy to the attorney and to the court, and if the attorney says he didn’t receive it again, be absolutely sure he (the defendant) sent it.

    Given that the attorney filed a lawsuit after I agreed with their C&D to stop, and there is no factual basis for them to file a lawsuit since I complied, it just seems opportunistic for them given the circumstances. So I guess my concern is, as I photocopy the check and envelope and one day I find out my bank account is being garnished by that attorney, and I’ve sent all my checks and have proof as I described earlier… I would have to file a lawsuit for breach of contract and my only proof of payment would be that photocopied check, envelope, delivery confirmation and signature. Would that stand up in court?
     
  16. AZGuy

    AZGuy New Member

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    You may want to confirm this, but i believe Certified Mail is legally recognized.

    I know when dealing with evictions, when you use Certified mail, the court considers it as being received 10 days after its been mailed regardless of if they received it or not. This is in AZ, and i am unsure if this would apply in a situation like this.
     
  17. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Additionally, no attorney in their right mind would commit perjury and also not send you a confirmation letter of an alleged and an ability to "cure" or remedy the situation. The acceleration clause isn't for their benefit to just get rich quick. It's to make things easy for movement as frequently happens with debtors - they can't pay, have all sorts of excuses, drag their feet, etc.
     

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