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Arizona infringer case and federal court DMCA and infringing information

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Protecting your images is as important if not more so than taking them. The questions seem to be more about how then why. The following is a short discussion on the reality of the system in the U.S...

Here is what you need to know. The law is not always applied evenly to all cases and persons. The lawyers will yell and so will some judges but there are different rules for different courts and judges. If someone cannot present evidence or a judge does a summary judgment based on their personal view vs expert opinions then you cannot get a fair hearing or trial. There are just too many variables to get the same results from all the different courts, judges and juries. That is why there are appeals courts and the Supreme Court as not even the judges can agree. You may also have the option for criminal charges but that is not something for this article. Those charges may be heard in the same court but the charges must be filed and include most if not all parties who had anything to do with the removal of the hard copies of the files.

The 3 year time frame to file is not set in stone and the start date varies by court because of the discovery or the injury rules. The discovery rule basically means the time starts from the day you “discover” the infringement. It also applies if the infringement has been hidden from the author. It can also apply if the infringer tries to hide. Even after the 3 years you may still be able to collect damages under the trolling of statutes. The injury rule which is slowly disappearing states that you have 3 years to start action from the first date of the infringement. Not a very fair rule as someone can actively try to conceal the infringement or themselves. Again this is where a judge can still award damages using the trolling of the statute. You can find some information on the discovery rule, the injury rule and trolling of statutes here. Here are a couple of things on the latest SCOTUS ruling, court agrees to hear case and the judgement this May. Copyright owners also have the added benefit that every time the infringed work is used starts a new 3 year period.

My case filing in Arizona is because of the new final location of the person I was previously unable get a positive location. I would have been able to have the court in Colorado hear the case because of her masking her location. Upon getting their address and other contact information it may be simpler to file in Arizona. I may have to move there just because of the distance so I can attend the hearings and court proceedings. As with all courts it seems they have their own way of doing things as the 278 page Local rules show.

With that said, the photographer needs to understand the priorities of the court in copyright law. There are only a few things to be decided. Is the work the same or close, was there opportunity to copy and who owns the image. Then the damage figures come into play. There are a couple of things to consider. I am an advocate of proceeding with statutory damages as those are really not something attorneys can attack like they can your own values. Also remember that DMCA cases allow for the collecting of attorney fees, court costs and other expenses if you win. There are attorneys who will do them on a contingency basis (for a part of the settlement) and some who might do it pro bono or free. I have been told those attorneys are around but I have yet to hear of a pro bono in a copyright case other than nonprofits.

If you want more information on the procedures and processes I suggest getting some of books. One is the Black’s legal dictionary and the other is Federal Rules of Civil Procedures. Another might be the Federal Rules of Evidence. These are readily available online or at the local book stores.

I am not an attorney. These are my personal opinions and general information only. These comments are not legal advice and should not be used as such.