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Is this copyright infringement ?? Important ... need help please

Discussion in 'Legal Issues' started by the dopant, Sep 26, 2009.

  1. #1
    I own this domain for like 10 months now and even posted a FOR SALE thread here once. An author recently wrote a children's novel with a title similar to my domain name. Her website is here.


    I thought the SE traffic coming in nicely, i would set up an amazon affiliate store and maybe sell a book or 2 through it. I set the page and sent the author a mail asking if this was ok. What pissed me off was she could have sent me a mail and I would ve taken it down... But she sent me a copyright infringement notice while I was just asking if this was ok.

    I want to hear from the copyright gurus here a few things...

    1. If I can hold an amazon widget about this book on my side bar ?
    2. If I can write an article on the book and make a post about the book and sell books through my amazon astore set up on this domain.
    3. Would posting excerpts from the book or picture of the cover be dealt as copy right infringement.

    I would appreciate if you directed me on to the right track too...
     
    the dopant, Sep 26, 2009 IP
  2. Num Lock

    Num Lock Active Member

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    #2
    My opinion:

    Your domain is older and before hers so how are you infringing her rights?

    You aren't even in the USA so how can she send you copyright infringement notice based off the USA's law?

    This is like when Apple started the iPod and someone had registered ipod.com the only thing they could do was buy the domain off him.

    I believe you can do whatever you want with the domain since she does make money off your sales if she complains that is her loss.
     
    Num Lock, Sep 26, 2009 IP
  3. the dopant

    the dopant Well-Known Member

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    #3
    Thanks Num Lock. Green repped you for your insight on this. BTW she is from Australia. Now I ve got a new question. Copy right laws .. are they country specific ? DO we have to be in the same country for the opponent party to be sued ?
     
    the dopant, Sep 26, 2009 IP
  4. theapparatus

    theapparatus Peon

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    #4
    Insert standard "I'm not an attorney" clause.

    Gotta agree with the above. I don;t see it as a copyright violation.

    1) There is a difference between "Pizza Gang" as you use it and "The Pizza Gang" as she uses it.

    2) It's in different fields. Yours actually concerns pizza while hers is a title of a fictional book. Kind of like amazon and amazonconstruction.com

    3) Your date is earlier. Just as a reference, I'm showing her book date as July 2009: http://www.amazon.com/Pizza-Gang-Facing-Witch/dp/1608603377/

    4) It's a trademark, not a copyright anyway.

    Copyright law is respected by most countries, not just the US.

    Could be an ass about it and send the same note to her publisher. I wouldn't bother sending one to her since most book publishers buy the legal rights when a book is published.
     
    theapparatus, Sep 26, 2009 IP
  5. the dopant

    the dopant Well-Known Member

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    #5
    Yea, the fields are different. My question is, Can I sell HER book through my amazon affiliate store on my site ? Is that copyright infringement ?
     
    the dopant, Sep 26, 2009 IP
  6. theapparatus

    theapparatus Peon

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    #6
    Again, I'm not an attorney, but in that case, I'd call it a gray area but since she's already complained, I'd say yes or at the very least, it'll give her more of a case.

    Think of it like all those sites that use the word youtube or google or whatever in their domain as a marketing tool. Youtube and others usually goes after them as it;s using their trademark in an attempt to market their site.

    Since she's already sent you the notice, I'm sure she would see it as a larger issue and may press the case. Again I don't think she has any legal basis to stand on but courts have done strange things in the past.

    Hope this helps
    -drmike
     
    theapparatus, Sep 26, 2009 IP
  7. the dopant

    the dopant Well-Known Member

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    #7
    Thanks for the help mate. But I sent amazon affiliate support a mail asking them if I can sell the very product through my site and I got a reply stating that its not copyright infringement and that I can sell any product of theirs on my site as long as its available on amazon.
     
    the dopant, Sep 28, 2009 IP
  8. the dopant

    the dopant Well-Known Member

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    #8
    That makes perfect sense though :|
     
    the dopant, Sep 28, 2009 IP
  9. theapparatus

    theapparatus Peon

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    #9
    I'm torn on that actually. I'm not an Amazon reseller (I live in North Carolina, one of the US states that Amazon will no longer do business with) so I've never read any of their agreements. They may have a clause in there somewhere that says such permission is granted and extended to all resellers. Also Amazon should have added their own "We're not attorneys" clause in their email to you. I'd rather believe an attorney than a $7 an hour clerk answering emails to get through college.

    It also wouldn't stop her from trying. Again courts have done strange things previously. You have covered most of your legal bases though so I'd give it a try.

    Good luck,
    -drmike
     
    theapparatus, Sep 28, 2009 IP
  10. SonnyCooL

    SonnyCooL Peon

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    #10
    no worry, u r selling amazon product not her, she already sold the resell right to AMAZON ....
     
    SonnyCooL, Sep 28, 2009 IP
  11. the dopant

    the dopant Well-Known Member

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    #11
    LOL true there. Thanks a bunch mate. I m contacting the publisher of the book now. If I get a go ahead from them I wouldnt worry much !!
     
    the dopant, Sep 28, 2009 IP
  12. lu1980

    lu1980 Peon

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    #12
    its not copyright infringement
     
    lu1980, Sep 28, 2009 IP
  13. mjewel

    mjewel Prominent Member

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    #13
    Selling her book isn't a copyright issue (I don't know what content you posted on the page you created so I can't comment on that), however, there is a trademark issue created by using a similar domain name to sell her product. Your usage of the domain is unique and not an issue until you start using it to sell the same product she uses on her website with a similar domain name. I wouldn't sell her product on this particular domain. Neither Amazon or her publisher have control over her intellectual property rights as they relate to her domain - only the owner of the site can grant that.

    It is going to cost you tens of thousands of dollars to defend yourself in an infringement lawsuit - one that even if you win - you will be out attorney fees. It's simply not worth it for the meager commission you could expect to make. IMO, the author has a pretty good case for infringement, especially since you created a page before obtaining her permission (Her attorney is probably going ask why you asked for permission if you didn't think you needed it). If you still want to sell her book on this domain, I would highly advise consulting with an IP attorney that has extensive experience in domain infringement. A good IP attorney is going to run about $350 an hour an up.
     
    Last edited: Sep 28, 2009
    mjewel, Sep 28, 2009 IP
    the dopant likes this.
  14. the dopant

    the dopant Well-Known Member

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    #14
    @mjewel,

    Thanks a ton mate !! I probably am not going the risk it I guess !!
     
    the dopant, Oct 1, 2009 IP
  15. gigaenvy

    gigaenvy Peon

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    #15
    Is the copyright infringement notice a cease and desist or an actual civil action? If it's a civil action, you better get an attorney and settle by means of having your attorney speak with her attorney to set the precedent. Trust me, I've been through this. A civil action does not go away by ignoring it and working it out with the plaintiff. That's the last thing you want. Do not speak with her again if it's more than cease and desist.

    The second thing you need to be aware of is electronically stored information that needs to be preserved and NOT DELETED from your server. You will be going through eDiscovery if you persist in defending yourself and the information found, including emails, can be used to determine the penalty, if copyright (the claim) is found to be actual.

    I've been through this as pro se and then contacted a lawyer at the 11th hour and got my judgment down 90%. Basically, I made an offer directly to the plaintiff and they declined. They wanted more and the entire business handed over. I ignored and did not respond, got a lawyer, and he negotiated me down to $0, so I basically ended up only paying attorney fees of $2,000.

    Lastly, you will want the plaintiff to provide you with the copyright registration. In my case, the copyright registration of the plaintiff was dated after the initial cease and desist and after the chilling effect of the DMCA hit my hosting provider and then me.
     
    gigaenvy, Oct 1, 2009 IP
  16. laurencewins

    laurencewins Peon

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    #16
    I'll add my two cents worth in here from the limited experience I have had and seen over the years.
    I am also an Aussie :) if that helps... probably not.

    Anyway, it is hard enough to make money trying to do it clean and above board.

    I would suggest that it sounds like it may not be the best idea to try and sell someone else's book using a similar domain.
    I am not sure whether a purchaser would be able to take legal action as well, and who really wants the headaches associated with legal battles.

    I went through a case of unlawful termination 2 years ago and it took about 9 months and finally we got it settled but it was one of the most stressful things I have ever gone through.

    Up to you but I would not do it, and I am a writer myself.

    Laurence
     
    laurencewins, Oct 1, 2009 IP
  17. the dopant

    the dopant Well-Known Member

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    #17
    Hi Laurence and Giga, No I was not trying to steal her content or anything. I just thought I would become her affiliate and sell some books from my domain too ( I thought she would be happy with sales , since she got her commission from each sales too ) But I had my own doubts and read up few articles on the domain issue and DID get to read that " selling similar products on similar domains could be a "problem" So I thought I would just drop the idea as its not worth the time spent on it. The domain expires in a couple of months anyway !! lol.

    And BTW I had sent 2 mails to her and since there was no " NO" in the first reply from her, I thought I would push a bit and ask her again. The second reply definitely had a NO written all over it and I took down the page in a matter of hours.

    Thanks all for your time though.
     
    the dopant, Oct 1, 2009 IP
  18. laurencewins

    laurencewins Peon

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    #18
    She is silly to knock back someone who offers to help sell her books.
    She does no work but makes extra cash$$

    Her loss and you are better off i think.

    Laurence :)
     
    laurencewins, Oct 1, 2009 IP
  19. CurveGotti

    CurveGotti Peon

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    #19
    I've received these kinds of notices before about alleged copy write infringement, generally if your site is older than their copywrite is on a title there isn't much they can do about it. Further more I've noticed a lot of the time the people that say they are going to do something about a so called copywrite infringement, do not follow up. Most of the time I think they try and use it as a scare tactic to try and gain some edge. If you are not in the U.S. and you have had the site up longer than she has had the copywrite I wouldn't take it too seriously myself. They probably don't even have the financial means to get a lawyer to follow up on it, let alone try and chase down international borders on some radical assumption that because after your site was already established they would copywrite a name and chase you down. If this were true I would copy write every name of everysite on the net that has established a good source of revenue and sue them all.
     
    CurveGotti, Oct 1, 2009 IP
  20. Traffic-Bug

    Traffic-Bug Active Member

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    #20
    By putting amazon gadget or widget in your website you are reselling amazon's product not her product directly. So you are going through an winded path.
     
    Traffic-Bug, Oct 1, 2009 IP