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SPOG-5-1002 Cease and Desist Ltr

SPOG-5-1002 Cease and Desist Ltr

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Published by pmocek
April 27, 2011, letter from Seattle Police Officers' Guild to Phil Mocek, regarding republishing SPOG newsletter retrieved from their public Web site.
April 27, 2011, letter from Seattle Police Officers' Guild to Phil Mocek, regarding republishing SPOG newsletter retrieved from their public Web site.

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Categories:Business/Law
Published by: pmocek on Apr 27, 2011
Copyright:Attribution No Derivatives

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09/02/2013

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SPOG-5-1002 Cease and Desist Ltr 
April 27, 2011Via E-mail (REDACTED)Re: Online uploads made by Phil Mocek of The Guardian newspaper Our Reference: SPOG-5-1002Dear Mr. Mocek:We represent the Seattle Police Officers’ Guild in intellectual property matters. It has recentlycome to our client’s attention that you have engaged and continue to engage in wholesalecopying of articles from The Guardian newspaper, a publication of the Seattle Police Officers’Guild. This conduct is in violation,
inter alia
, of federal copyright law and state unfair competition law.The wholesale copying we refer to may be found on thewww.scribd.com/pmocek website asuploads by you. By way of example, your upload
1
on March 16, 2011 provides a complete copyof the March 2011 edition of The Guardian. At least another thirty-four additional wholesalecopying uploads have been made available by you athttp://www.scribd.com/pmocek/collections,each listed in Exhibit A. These uploads are not associated with any commentary and yourepeatedly attempt to pass off your slavish copies as “the official newsletter of the Seattle PoliceOfficers’ Guild.”While you may believe your activities are permitted by the fair use doctrine or protected under the First Amendment, we note that federal courts in our jurisdiction have repeatedly foundotherwise under similar fact patterns. The Ninth Circuit Court of Appeals determined thatcopying an entire work militates against a finding of fair use.
Worldwide Church of God v. Philadelphia Church of God, Inc.
, 227 F.3d 1110 (9th Cir. Cal. 2000). In the Worldwide Churchcase, the defendant Philadelphia Church appropriated a religious work authored by one of Worldwide Church’s pastors for use in its religious observance by copying the work in itsentirety and distributing it to its members and the public. The Ninth Circuit found that because asubstantial portion of the infringing work was copied verbatim the defendant was not entitled toclaim fair use.
1
 
http://www.scribd.com/doc/50826349/SPOG-The-Guardian-2011-March 
701 Fifth Avenue, Suite 4800Seattle, Washington 98104206.381.3300
F: 206.381.3301blgip.com
 
 
Richard C. VershaveDirect Dial: 206.957.2167Email: vershave@blgip.com
 
Mr. Phil Mocek April 27, 2011Page 2
SPOG-5-1002 Cease and Desist Ltr 
In another example, the U.S. District Court for the Central District of California in evaluating thefair use defense, determined that even where copying serves the "criticism, comment and newsreporting" purposes set forth in 17 U.S.C.S. § 107, its extent cannot exceed what is necessary.
 L.A. Times v. Free Republic
, 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. Mar. 31, 2000). The factsof this case are strikingly parallel to your conduct because Free Republic copied the entire text of articles published by the L.A. Times and then posted the copied text on Free Republic’s websiteso others could add commentary. The District Court stated that “commentary on news eventsrequires only recitation of the underlying facts, not verbatim repetition of another's creativeexpression of those facts in a news article. The fact that a particular media outlet publishes agiven story, or approaches that story from a particular angle can be communicated to a largedegree
without posting a full text copy of the report
” (emphasis added). For this reason, theDistrict Court denied Free Republic’s summary judgment motion for protection under the fair use doctrine and concluded that verbatim posting of the L.A. Times’ authored articles was "morethan is necessary" to further Free Republic’s critical purpose.In view of the above and on behalf of the Seattle Police Officers’ Guild, we demand that youcease and desist from such copying and remove all online links to the same. We have notifiedScribd Inc. about the unauthorized copies uploaded by you to their site. The submitted takedownrequest filed under the Digital Millennium Copyright Act (DMCA) is attached as Exhibit B. Wedirect you to Scribd’s Copyright Management System
2
so you may refresh yourself on their zero-tolerance policy for repeat copyright infringers. Consequences for your ongoing actions areserious and under the Federal Copyright Act you may be subjected to a temporary and permanentinjunction, the destruction of all infringing copies and statutory damages of up to $150,000 for each act of infringement. Further, the apparent willfulness of your infringing conduct may resultin further sanctions, which may include enhanced damages and possible criminal charges
3
. Inaddition, our client’s legal costs and attorneys' fees may be awarded should they prevail in anyresulting litigation.The Seattle Police Officers’ Guild is willing to resolve this matter amicably provided that youimmediately discontinue your infringing activities and institute provisions to insure such activitydoes not occur in the future. By immediately ceasing such illegal copying activities, you maylimit the amount of damage that has already been caused and potentially could be caused in thismatter. The Seattle Police Officers’ Guild would be willing to release you from liability relatedto the above-mentioned claims, if you agree to:
 
immediately stop any commercial use, copying (
e.g.
, scanning or linking) or distribution(
e.g.
, posting, re-posting or uploading) of The Guardian in any online or printed format;
2
 
http://www.scribd.com/copyright 
3
 
See
17 U.S.C. § 506
 
Mr. Phil Mocek April 27, 2011Page 3
SPOG-5-1002 Cease and Desist Ltr 
 
remove and permanently delete all infringing instances of wholesale copying of TheGuardian articles from Scribd.com and any other site, database, server, or memorystorage medium that you may utilize for your infringing activities;
 
immediately cease use of any trademark owned by the Seattle Police Officers’ Guild; and
 
notify the undersigned in writing no later than April 30, 2011 that the aforementionedsteps have been fully completed.Very truly yours,B
LACK 
L
OWE
&
 
G
RAHAM
PLLC
 Richard C. VershaveEnclosures:Exhibit AExhibit BCc: Client

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