Lawsuits

Lawsuits.

They happen. Whether you are on the giving or receiving end it helps to know how they work.

Everyone makes mistakes. Some are big enough to attract the attention of law enforcement. Your brain may produce a sentence or six that you simply do not remember reading years ago and you write that sentence down as your own. You may say the wrong thing in an interview or chatroom and defame someone. You may invent a symbol for your company without thoroughly checking to be sure it was not trademarked first. You may write a story that simply flowed from your brain like water, never realizing that you had read the same story as a child and not remembered doing so.

As we discussed previously, most mistakes involving writers fall into one of five categories:

• Defamation / Slander / Libel
• Copyright infringement
• Right of Publicity violation
• Breach of contract
• Trademark infringement

Regardless of what you did or what someone is claiming that you did, there is a right way and a wrong way to respond to a lawsuit. There are four main things to remember and one important action to take when you find yourself being served.

These items are listed here in the order in which you should do them

1. Say nothing, to anyone.
2. Take the Complaint Seriously.
3. Do Not Ignore the Complaint.
4. Do Not Attempt to Represent Your Company Yourself.
5. Contact a Litigation Attorney.
6. With your Attorney, contact your Insurance Company.

Note: It’s important to remember that the goal of your attorney and the goal of your insurance company are different. Your attorney’s mission is to fight the lawsuit in a manner that best defends you and your company. The insurance company’s mission is to exit the lawsuit with as little cost as possible. The two goals may or may not be mutually inclusive.

How does it work?

Someone usually shows up at your home or place of business and serves you with a complaint. The usual reaction to being served is one of anxiety, fear, or anger, but this is not the time to let those emotions be expressed. This person is a process server and has zero knowledge as to the nature of the complaint. They are merely the deliveryman. Questioning them is a waste of time. Take the paperwork and acknowledge that you have been sued. The information you need is in the paperwork they have delivered. It's best to just silently take it and send them on their way.

The complaint will have both a Summons and the Complaint itself.

The Summons will state that you must respond to the Complaint, usually within twenty or twenty-three days.

The Complaint will outline the allegations against you and/or your company and perhaps some other entities. It will claim that the plaintiff (the person suing your company) has sustained some form of personal injury. It may allege that your company has breached a contract, damaged someone’s property, infringed on their copyright, pirated their work, or any number of things. Whatever the plaintiff is alleging, they will be seeking some form of relief, usually in the form of monetary damages. The dollar amount for which is most often found at the end of the Complaint.

At this point, you may realize that the lawsuit is bogus in nature or has been filed merely to harass you. This does not make the complaint any less serious. Do not ignore the Complaint or try to represent your company yourself! To do so will result in what is known as a default judgement. 

Once a Complaint is on file, ignoring the problem is a fool’s errand. The dispute will NOT blow over or go away simply because you refuse to engage. Each state has  their own set of Trial Rules and most contain strict deadlines for responding to Complaints and dictate the form of a response. Failure to respond timely and in accordance with the state's Trial Rules can and will lead to a default judgment. The court will have no choice but to rule in favor of the plaintiff and award them the monetary judgment against you and/or your company.

In short, failure to act on your part guarantees a win for the person who sued you.

This Default Judgment, even if it were based on a complaint that was bogus in nature, is still enforceable. Once it has been ruled on it may be too late, even with a lawyer’s assistance, to undo the judgment, get the complaint back before the court, and successfully argue that the plaintiff’s claims lack any merit.

With the Default Judgement in hand the plaintiff can take a variety of actions to collect money owed them. This can include foreclosing on real estate owned by your company, freezing your company bank accounts, taking possession of your vehicles, and even collecting your companies’ profits. These actions can stop your business from operating until the judgment is paid in full.

Ignoring a lawsuit is not an option.

Receiving this notice requires action, but this action should be well thought-out and not detrimental to your case. Do not lash out emotionally by firing off a nasty email to the person suing you or attempt to erase any evidence of the complaint from the internet or other records. Stay calm and proceed carefully.

The first thing you should do is call your attorney. Send them a copy of the complaint and be prepared to receive instructions from them on what to do next.

Most likely they will tell you to gather and safeguard any evidence involving the complaint. You should do so as soon as possible and include everything related to the complaint no matter how remote it may be. Name any witnesses to the complaint and include their contact information. Your attorney will guide you through what to include and what not to. Once you have all this information collected, make two copies of everything and schedule a meeting with your lawyer.

Once you and your lawyer have thoroughly gone over everything you will need to decide on a course of action. You can either fight the complaint, move to dismiss it, or settle.

If there is a chance that the complaint has merit, the next call should be to your insurance company. This is to determine your coverage and how the insurance company wishes to proceed.

If your company has purchased an insurance policy that covers the type of claim made against you, your insurance company should hire an attorney who will represent your company and defend it. If your company does not have insurance that covers the type of allegations made in the Complaint, you will then need to retain your own lawyer to handle it.

At this point you’ll start seeing estimated fees being added to the monetary damages. If the case is shaky, or you feel without merit and easily defended, you may feel you can handle the defense yourself and save a lot of money.

Do Not Attempt to Represent Your Company Yourself.

Chances are, you can’t anyway. Even if you were adamant that you could handle it yourself, the court will not allow you to. 

Most states have trial rules that prohibit individuals who are not attorneys from appearing in court and representing a corporation or limited liability company. While these laws provide a narrow exception for matters filed in small claims court involving less than $1,500, they are quite narrow and unlikely to apply to your case. Attempting to represent your company in court would constitute the unauthorized practice of law.

The main rationale for this law is that the court considers corporations and LLCs to be separate entities from the individuals who own them. When you appear in court on behalf of your company, you would be representing a different person and acting as if you were a licensed attorney. A judge cannot allow such representation. Attempting to represent your company yourself can lead to a default judgment.

The best advice is simple, follow the instructions of your lawyer. It’s what they do.

What if I’m the one that needs to file a lawsuit?

Knowing how to file a complaint is just as important as knowing how to defend oneself from a complaint.

The most common legal issue writers deal with is someone using their content without their permission. Some people still believe that if something is on the internet it is free to use however they wish. People may like your blog post and simply copy it to their own. They may use a video you made or your books coverart to promote their own writing or product. They may even download and share your entire book.

This is Copyright Infringement and it is illegal.

Your first defense is to provide ample warning. There are several ways to do so.

Place a Copyright Notice on each page of your website, at the bottom of every blog entry, on every newsletter, and at the end of every video.

It should read “Copyright (or the © symbol) + Date + Name of the Copyright owner + ALL RIGHTS RESERVED”

TIP: To insert the copyright symbol, press Ctrl+Alt+C. If using a MAC hold the option key and hit G.

Post a Copyright policy on your webpage. It should read something like this:

If you wish to use this blog for your own purposes you may copy no more than 50 words without permission provided you give attribution to the original post, link back to the original content, and do not alter the general meaning or message of the content.

Link back to your own webpages. By doing so in every blog post you write you will receive what are called “Ping Backs” from your analytic software and be able to see where someone is displaying your work.

Register your blog with the Copyright office.

Set up Google Alerts. You can do this for your name, the name of your publishing company, for your blogs signature tag line, and the title of your posts and newsletters. You can even do so for a particular sentence in the post that might be especially tempting to copy. Google will then send you an email whenever those words or phrases are used somewhere.

If your work is especially attractive to pirates there is software that will allow you to disable right-clicks, watermark your work, and even embed code that will notify you when it is used somewhere other than its original location.

Even when all of these steps are taken, eventually your work will be stolen. When this happens there’s no need to call your lawyer right away. There’s a few things you can do yourself first.

Contact the site. In most cases a simple email to the websites administration is enough to get your content taken down.

Send a take-down notice. Often called a DMCA notice.

DCMA

DMCA stands for Digital Millennium Copyright Act, and it’s a law passed in 1998 intended to update copyright law for electronic commerce and electronic content providers. It criminalizes the circumvention of electronic and digital copyright protection systems.

A DCMA notice is a simple letter outlining the material that is being used, where it is being used, and demanding that it be removed or disabled.

A typical letter will read as such:

XYZ Publishing LLC

2000 Hemingway Dr.

Big City, Michigan 29746

www.XYZPublishing.com

Captain Jack Piracy Services

3215 Mom’s Basement Rd.

Intercourse, Penn 17529

www.thisisnotmine.com

RE: DCMA NOTICE

To Whom It May Concern,

It has been brought to my attention that your website is hosting unlicensed copies of copyrighted works published by XYZ Publishing LLC. Particularly the book titled “Making money with Ebooks” published on May 4th, 2019.

[ LINK to infringed material ]

Without authorization from the copyright holder, the material described is being offered for sale, made available for copying, and made available for download at the following locations:

[ LINK to pirate site ]

A thorough check of XYZ Publishing LLC records finds no authorization for use being granted to your company by XYZ Publishing LLC.

XYZ Publishing does hereby give notice of these activities to you and request that you immediately remove or disable access to the material described.

Please advise as to what actions you have taken to remedy this infringement.

Sincerely,

Richard Fitzwell

President, XYZ Publishing LLC

Many social media sites will provide a letter template to help facilitate take-down notices. They are commonly found in the links section under Legal, Copyright, Report a Problem, or Help.

NOTE: If you are dealing with a website always send a copy to the Internet Service Provider that is hosting it. You can find this by using http://whois.net/ and then type in the domain name of the website stealing your work. The ISP may have a template as well, but if not you can simply write your own using the sample above.

Once you have sent your take-down notice you’ll wish to notify Google. You do this using the Google Copyright Infringement Tool.   https://support.google.com/legal/troubleshooter/1114905?hl=en

Here you are requesting that Google remove the infringing site from their search results. Google is usually very keen to do so. Like you, they do not want an illegitimate site appearing before a genuine one. The site may not be removed entirely, but its position in the search results will fall considerably, rendering it as close to invisible as possible.

Whether or not these steps work depends on the person pirating your content, and their location. They may do nothing, which will result in the social media site, ISP, and search engine removing the pirated material, or they may file a counter notification disputing the DCMA.

If this happens the ISP will repost the infringing material and you will have 14 business days to file a legal action. This will usually result in them removing the material a second time. However, if the ISP is not based in the United States, they may ignore that second notice as well.

At this point it’s time to call the lawyer.

However, keep a few things in mind first. Lawyers and litigation are expensive. The cost alone may be far more than what you are losing. The person doing the infringing may be overseas and therefore out of reach. Even if you win, collecting damages in the form of lost sales may be hard to prove.

A letter from your lawyer may be enough to change their minds. A cease-and-desist letter from an attorney written on the firm’s letterhead is usually not something people ignore. Your lawyer may be willing to try this for little to no cost.

Pirated material is not always easy to spot. Some sites go a step further to avoid detection by changing the cover and title of the book they’ve stolen. This is where it might be a good idea to utilize Google Alerts for a few key phrases from each book. Pick out a line, preferably from the first twenty pages, that is unique to that work. Few pirates are willing to go the extra mile to re-write an entire book and will usually copy the contents word-for-word. For them this is about making money for as long as they can until they are caught, and then moving on to the next book/target. Most pirate sites are actually fronts for people attempting to steal information such as email addresses and credit card information. Profits from your work is seen as a bonus.

Before you accuse someone of violating your copyright, it helps to remember a few things first.

• Ideas are not covered by copyright. Neither are themes or historical events. Story’s set in similar times or places to yours are not automatically copyright violations. Infringement implies “close copying” which means copying word-for-word or with very similar words expressing the same ideas as you have. It does not apply to the actual idea itself.
• Quotes of your work related to commentary, educational purposes, review, or parody will most likely fall into the realm of fair-use. This is not considered infringement.

With the number of pirate websites steadily growing, trying to keep up with all the nefarious players can quickly occupy a large amount of your time. You’ll have to weigh the actual cost of addressing the theft against the time it takes away from your other pursuits. Again, what is your time worth? Are you better off writing?

Usually, the answer is yes.

DRM

Do I check the box or not?

DRM stands for Digital Rights Management and it’s offered at many of the platforms you will be unloading books to. It’s usually just a question and box to click Yes or No on.

DRM is encryption software that places a lock on your work that only allows the purchaser to open it.

In theory.

While DRM sounds like a no-brainer, it really doesn’t accomplish much. The software is easily cracked and for some a DRM’d book is simply a challenge to do so. Like a cheap lock it only keeps the honest, honest. DRM will barely slow down someone who is there with the intention of stealing a book.

Whether or not to apply DRM to your books is every authors decision. While it doesn’t help much, it also doesn’t hurt much. Treat it as you would your house or car. That lock on the front door may not stop a determined thief from getting in, but most people use them anyway.

NOTE: DRM does nothing to protect or take away from your copyright, you will still retain your copyright whether you use DRM or not.

Fighting piracy and patrolling the web to protect your copyrights may or may not be a good use of an author’s time. Chances are if you and your publishing company ever get to the point that it’s costing a significant sum, that point is well off into the future.

“Obscurity is a bigger threat to authors than piracy”. – Mark Coker

Mark is the founder of Smashwords and is well-versed in the world of indie publishing. These words have rang true since he uttered them back in 2013. Most authors give away their work in order to build an audience. The more people read your books the more likely they are to recommend them to friends and family. In the world of advertising, word-of-mouth is still king. The number of free books an author gives out is usually a magnitude more than the number being pirated. Most authors view piracy as free advertising.

Conclusion

Remember what your time is worth. Yes, keep an eye on your copyrights, but remember to pick your battles as well.

Most authors will spend their entire careers never needing a litigation lawyer. This is a combination of luck and preparedness. Obviously, the better an author is prepared the less their chances of being sued. Taking a few steps to safeguard your work, being careful about what you write and say, and doing periodic checks on your copyrighted works are usually enough to keep you from needing that lawyer.