Discussion:
What is the name of your state? North Carolina.
Last September, 2003, we decided to compile a CD of adult pictures that we had gathered from sources such as newsgroups and free adult galleries (you know the thousands of them out here). We never used any pictures that had a copyright or website URL on them, just those in the free galleries and newsgroups. We began selling these on eBay in September, 2003 for a very very small amount. We probably sold about 13 and less than 50.00 total and have not sold any for weeks because honestly, it just has not been worth the effort. In any event, a couple of days ago, we received the following email Cease and Desist:
Dear Mr. ******:
SunUp Media Group, Inc. ("SunUp") has been authorized by Oliver Klozov
Productions, Inc. ("OKP") to act as its agent with respect to protection of
it's intellectual property rights. SunUp has learned that you have
produced, copied, and distributed CD-ROM's containing material (the
"Property") owned and controlled by OKP.
You have apparently sold and continue to sell CD-ROM's containing the
property on the internet auction site eBay and through other channels.
Before OKP refers this matter to it's legal counsel for handling, it has
authorized SunUp to convey the following:
1. You must immediately cease and desist from any further unauthorized
production, copying, distribution, or other exploitation of the Property.
2. You must provide to SunUp within fourteen days of the date of this
letter:
(a) all remaining discs containing copies of the Property, in addition to
all other related artwork or images;
(b) a detailed accounting of all revenue received by you resulting from your
exploitation of the Property, or any product or service containing the
Property or segments of the Property;
(c) the names and addresses of all persons to whom products containing the
Property have been sold or distributed, or who are known to you to have
received or further distributed the Property.
Please confirm to me in writing no later than the close of business on
February
24, 2004, your receipt of this letter, and that you shall fully and promptly
comply with each of the foregoing demands.
If SunUp has not received your voluntary compliance with the foregoing by
the stated deadline, be advised that OKP shall refer the matter to it's
legal counsel without further delay.
*************************************************
We were really shocked because 1. we had never sold anywhere but eBay, 2. we do not have a big warehouse full of pre-made CDs to send to them. All pictures are on our hard drive. We did not make a huge amount of money, only less than 50.00.
This is what we wrote back:
*************************************************
We are in receipt of your letter. We do have some questions regarding the
same.
1. In your letter, you stated "You have apparently sold and continue to
sell CD-ROM's containing the property on the internet auction site eBay and
through other channels."
What exactly are the alleged other channels?
2. In your letter, you stated, "SunUp has learned that you have produced,
copied, and distributed CD-ROM's containing material (the "Property") owned
and controlled by OKP.
What exactly are the materials you are referencing?
We have every intention of compliance, however, we feel that the above
questions need to be addressed.
We have not sold anything other than on E-bay and our profits have been
under 50.00. As far as property is concerned, any pictures we might have
obtained were gathered on the newsgroups, in forums and such and we did not
know. Hence, the above-mentioned questions.
*******************************************
This is their response and we have not replied because frankly we do not know what to do:
I write further to my earlier letter of February 10, 2004, wherein I advised
of
your unauthorized use of certain material (the "Property") owned and
controlled by Oliver Klozov Productions, Inc. ("OKP"). In that letter, I
explained SunUp Media Group, Inc. ("SunUp") is the authorized agent of OKP
with
respect to protection of it's intellectual property rights, and requested
certain information about your unauthorized use of the Property.
Based on your response of February 11, 2004, it is clear that you have, in
fact, infringed OKP's copyrights in the Property, in addition to violating
other federal statutes including the Lanham Act. Moreover, under California
law, and the laws of many other states, the unauthorized use of the
performer's images and likenesses subjects you to additional liability.
Legal counsel for OKP has advised that your conduct could subject you to
statutory damages under the Copyright Act of $150,000 per infringement, if
the infringements are deemed willful. Counsel has further advised that OKP
can obtain an injunction against your continued exploitation of the Property
and an order that you pay OKP's attorney's fees. The Lanham Act provides
for triple the actual damages suffered by OKP, as well as payment of OKP's
attorney's fees. Moreover, the unauthorized use of the performer's images
and likenesses in the Property subjects you to monetary liability under
California civil code section 3344.
SunUp is advised by legal counsel for OKP that your liability for your
wrongful conduct may range into the hundreds of thousands of dollars.
However, OKP has authorized SunUp to negotiate a settlement of the matter
directly with you prior to referring the matter to it's legal counsel for
prosecution. Accordingly OKP is willing to let you settle this matter for a
payment of $1000 (one thousand dollars). Upon receipt of the payment,
you will receive a signed settlement agreement releasing you from all
liability for your past willful conduct in regards to the OKP Property.
This settlement offer will expire on February 26, 2004. You are of course
under
no obligation to accept this settlement offer. However, if a satisfactory
settlement is not achieved, OKP has advised that it will engage counsel to
pursue all available remedies without further delay.
Please respond no later than February 19, 2004 with either your acceptance
or
rejection of the proposed settlement offer. I will provide payment details
after receipt of your decision.
*************************************************

We have no idea how to proceed with this. I have verified that the group does exist.
Any advice at all would be appreciated.
Thanks!
Answer:
Before anyone can answer this.... how much money do you have to spend on legal fees to defend your actions??
And what is the TOTAL value of your non-exempt assets in the unlikely event that they take action and get a judgment???
Answer:
And where can we get a copy of the 'infringing' material to review???
Answer:
Originally posted by JETX
Before anyone can answer this.... how much money do you have to spend on legal fees to defend your actions??
Well, if we had a ton of money, we would not be selling CDs on eBay LOL! We did this as an experiment of sorts, to see if it would sell. We really did not know.
Your answer/question sounds rather ominous though.
Is it *that* bad??
And what is the TOTAL value of your non-exempt assets in the unlikely event that they take action and get a judgment???
Answer:
The reason those things are important is that if you have no significant assets, it would be very unlikely that they would spend the money and time pursuing any action against you.
And if that is the case, you might explain to them as you have here, that you burn these cd's on an 'as sold' basis and as such, have no 'product' to deliver to them.
Further, I would suggest you offer to remove the 'offending material' from your computer and promise not to make, sell, possess or distribute any 'offending product'. Offer to sign an affidavit for the same if they wish.
Answer:
I appreciate your insight into something we know absolutely nothing about, "something" being this mess we are in. I guess it's true that you live and learn but it's not worth the maybe 50.00 of product that we sold in comparison to the multi-million dollar company they are.
Thanks again!
Answer:
This is really weird, but I received the same cease and desist email last week (on February 6) for the same reasons as the original poster. I sold about 30 CDs and only made $300 in one big auction, and decided not to sell anymore either because it just was not worth it.
I have 2 questions: 1) why do they want the addresses and names of the those who bought the CDs? and 2) should I be asking them to correspond via regualr mail?
Thanks!
Answer:
You got the same exact email ?? What CD were you selling??
Answer:
Aren't copyright holders required to specify the exact material that is in violation? I don't see that that has happened.
Given that someone else has had the same problem, this might be a strong arm attempt. It may also be that both people had the same set of pictures, but who knows...
Answer:
I was selling CDs with videos on them. Same company, SunUp sent the email.
Answer:
What are you doing about it?
Answer:
I'm complying with their wishes. I definitely have no means to fight them, and it wouldn't accomplish anything anyway, so this seems like the easiest way to go about things financially.
Answer:
Did you at least seek legal advice or ask "sunup" to send their "demands" via postal mail? It's the legal thing to do, communication via postal mail. Also, I've heard from more than one person that that email appears to be a scam; did you check that out? I mean really, if they are now asking for money and doing it via email - who is to say they are who they say they are, etc. I've also contacted free legal counsel in addition to asking them to conduct their business via postal mail.
Answer:
Thanks for all the info. I haven't sought legal advice, or asked "sunup" to use regular postal mail. What did "sunup" say when you asked them to use regular mail? When I first got the email I thought it might be a scam, but it just seems so real, but maybe it is a scam. What are you planning on doing?
Answer:
Have any of you contacted safe harbor on ebay to find out if it is a true email- I have been on ebay for 8 years and There is alot of scams you get. You will get people that call your house saying they are from ebay when there not
DO everything in writing no more emails !!!!! You need to check your entire email headers if it does not say [email]whoever@supup.com[/email] in it 99% of it could be a scam it has to have the company name in it like [email]safeharbor@ebay.com[/email] . Contact safeharbor to make sure they are not scams Also post your question on the boards you will get a answer.