Legal Question in Intellectual Property in Kentucky
What should i do about this letter my wife received in the mail?
COPYRIGHT INFRINGEMENT
Mediacom has received a notice that you or someone using your account for the Mediacom OnlineSM high-speed Internet service has posted, transmitted or shared with others certain copyrighted material without the permission of the owner, there by engaging in copyright infringement. A copy of that notice is attached.
If the complaint is true, this behavior violates the terms of your Customer and User Agreement and our Acceptable Use Policy for the Mediacom OnlineSM service. Your received copies of the Customer and User Agreement and our Acceptable Use Policy at the time your use of the Mediacom Online service began, and copies can also be reviewed online at http://www.mymediacom.tv/userpolicies.
Please keep in mind that You are Responsible for Violations by All Persons Using Your Account. According to Mediacom Accepted Use Policy: http://www.help.mymediacomonline.com/help/read/publisher_01/2002-11-22.01
“If you are a subscriber to the Service, you are responsible for any misuse of the Service by anyone using it through your account, even if a friend, family member, guest or other person committed the inappropriate activity with access to your account. A violation of these Policies by someone using the Service through you or your account will be considered a violation by you, whether or not with your knowledge or consent.�?
Having received this notice, Mediacom is required by law to act expeditiously to remove or disable access to the files or other materials specified in the notice. Accordingly, we require that you immediately remove or disable access to all files and materials specified in the notice, as well as any others that you may be posting, transmitting or sharing (on a “peer-to-peer�? basis or otherwise) without the permission of the copyright owner. If you do not do so within the next twenty-four hours, or if at any time we receive an additional complaint that that your account is being used to infringe any copyright with regard to these or other files or materials, Mediacom will exercise all of our rights and remedies, including, without limitation, by suspending or permanently terminating your use of the Mediacom OnlineSM service. Copyright infringement may also subject the infringer to liability to the copyright owner for as much as $150,000 for each infringement. Violation of copyright law is also a federal crime if done willfully with an intent to profit.
If the files or other materials that are the subject of the complaint have been “cached�? by Mediacom or any of its vendors or posted by you on a website ,bulletin board, chat room or other web space that Mediacom or any of its vendors controls or hosts, then this notice is to also to inform you that, as required by the Digital Millennium
Copyright Act, we neither have take nor will take action to remove it or disable access.
We are also providing you with your right under the Digital Millennium Copyright Act to provide Mediacom with a counter-notification concerning the allegations of infringement. Your counter-notification must be in writing and substantially contain the following elements to be effective:
·Your physical or electronic signature.
·Identification of the files or materials that have been removed or to which we have disabled access or demanded that you disable access and the location at which such files or materials appeared before it was removed or access to it was disabled.
·Your statement made under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
·You must provide us with your name, address and telephone number and you must state that you consent to the jurisdiction of the United States District Court for the district where you are located or if you live outside the United States, that you consent to the jurisdiction of the judicial district where we are located (Southern District of New York).
·You must also affirm that you will accept service of process from the agent or from the person who provided us the original notice of infringement.
If you wish to submit a counter-notification, send it by email to [email protected] or by postal mail to Mediacom Online Abuse, 100 Crystal Run Road, Middletown, New York 10941. Please be sure to include the name in which your Mediacom Online account is maintained and your account number.
If we receive a counter-notification meeting these requirements from you, we will promptly provide the sender of the original notice with a copy of your counter-notification. If Mediacom (or any of its vendors acting upon its instructions) itself has removed disabled access to the files or materials, we will also notify the sender that Mediacom will restore the removed items or cease disabling access (as the case may be) in ten business days unless the copyright owner or its agent notifies us within that period that it has filed an action seeking a court order to restrain the allegedly infringing activity.
You should know that if you knowingly misrepresent that the files or materials were removed or disabled by mistake or misidentification you will be liable for all damages, including costs or attorneys fees, incurred by us and the copyright owner.
We value your continued relationship as a customer. We sent this notice to in good faith and in the belief that you desire to ensure continued service from Mediacom.
Sincerely,
Mediacom Online
Fraud &Abuse Department
Fax:845-818-9603
Mediacom Communications Corp.
100 Crystal Run Road .
Middletown, NY 10941
1 Answer from Attorneys
The letter your wife received appears to be pursuant to the so-called "notice and takedown" procedure set forth in the DMCA. You can see the law here:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html
In short, by sending this notice, Mediacom is protecting itself from a claim of copyright infringement for something your wife allegedly placed on their service. Your wife has the option of doing nothing (the material will be taken down) or issuing the counter-notice (in which case the material gets put back up). Either way, the copyright holder could still sue your wife for copyright infringement. But if your wife is confident that the material in question is not infringing, this procedure basically allows her to step up and say so. So long as Mediacom complies with the procedure, then the copyright holder can sue your wife, but Mediacom is off the hook.
It is not uncommon for copyright holders to misuse the process, either to get stuff they don't like taken down, or by being sloppy and not checking to see that the name of the page refers to, say, the title of a student's term paper rather than the similar name of a copyrighted work like a song or a movie. You and your wife may find some helpful guidance at http://chillingeffects.org/, a well-regarded website intended to provide guidance to people in your wife's situation.
Although the text you provided does not indicate it, I would expect that the letter at least attached something indicating who it is that claimed the infringement, and identifying the web page or material alleged to be infringing. To be effective, the copyright holder should have identified the material to Mediacom.
Good luck.
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