Legal Question in Intellectual Property in New York

What does a company need to make a case on someone allegedly selling copied soft

If a company accuses someone of selling copies of their software program what do they need to establish a case? Are there any steps that they need to take to ensure that their case is valid? If no copy of the software can be reproduced by the company making the accusation, no testimony from a buyer that they are in possesson of copied software can be obtained, no records indicating that the seller of the software ever purchased their product, no written documentation saying the CD's were copied (meaning it is only assumed that they might be copies), no contact to the site administrator that let the item be sold, no warning to the seller, no penalty for infringement listed on the company website, no mention of infringement for ''attempting'' to sell, can the company request a penalty of the cost of the software times every sale and attempt to sell? Is it legal for the company making the accusation to pose as an interested buyer to obtain information and then accuse the seller of ''attempting'' to sell and impose a fine by answering their questions?


Asked on 7/29/02, 12:52 pm

1 Answer from Attorneys
Bradley Rosen

Re: What does a company need to make a case on someone allegedly selling copied

The manner in which your question is written makes it very difficult to determine what the facts of the case are. And, in every question under the law, the unique facts of each situation are what determine the outcome.

What I can tell you is that a party owns a copyright in something when it is "affixed in a tangible medium." Registration is not necessary for the creation of the copyright, but is necessary before commencing an action in court. Likewise, the copyright notice does not have to be on a work in order to claim rights in a work. However, failure to post the notice will impact upon the amount of damages you can recover.

The bottom line is whether you used something that did not belong to you. If so, usually stating that you will not do it again will resolve the matter. Sometimes, depending on the material used and the manner of use, a reasonable fee for the use (based on whatever money was made by the use) will suffice to resolve the matter.

I stress that I cannot give fuller answer without a more specific set of facts. If this is a larger problem than what you intimate from your presentation, then you should consider retaining counsel now to work it out before it gets out of hand.

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Answered on 7/30/02, 11:22 am


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