Dash Poem Extortion Letter Recipients: What To Do?

Fortunately, the anti copyright-troll community is a friendly one and shares information.   Earlier I posted a link to a full analysis of the Linda Ellis “The Dash Poem” copyright extortion letter scheme at:

http://rankexploits.com/musings/2013/dont-post-linda-elliss-the-dash/

The site’s author has allowed me to put a piece of that post directly into this blog because it addresses the most important question a letter recipient has, “What do I do now?”  I have slightly modified the piece to make sure the links work and to remove some extraneous content.

For the purposes of full disclosure neither the original author nor I are attorneys.  We are not giving legal advice.  We are only sharing out opinions based on our observations.  Ultimately, you are going to have to decide what to do.

What should you do?
So, what should you do if you post The Dash Poem and (as will quite likely happen) receive a demand for $7,500? My advice is don’t post the stupid poem in the first place. But if you do, you can either consult an attorney (which usually costs a lot. But you could consider contacting Oscar Michelen who has a relatively inexpensive program to write a letter for you.), or do what I would do:

  1. Even if you believe your posting is permitted under fair use (and it may be) take down the poem. It is copyrighted and in those cases where copying doesn’t qualify as fair use, Linda does have a right to request you take it down.
  2. If you believe (or simply fear) your use might not fall under “fair use”, write a response letter that does not admit fault but states that to get this matter behind you, you are willing to offer $200 which you believe is the amount a judge would assess in this specific case if he found in favor of Ms. Ellis inadvertent infringement. Make the offer contingent on her agreeing to drop any claim and refuse to sign any confidentiality agreement that might prevent you from discussing your experience. My understanding is offers to settle are viewed on favorably by judges when assessing damages should Ellis take what seems to be the unprecedented step of suing someone who posts the poem on a web site, blog or funeral circular. You may of course continue to negotiate if you wish.
  3. Upload a copy of the email she sent you in a public forum like Scribd– or really anywhere; after you have done so, drop a link to the document in comment for this post. 
  4. Consider finding newspaper articles and PR pieces discussing Linda Ellis and The Dash and relate your experience. Help Linda protect her rights under copyright and warn people what can happen to those who inadvertently post the poem. Suggest they protect themselves by never posting the poem in a blog post, comments, a funeral commemorative or similar item. Warn those you know to avoid endangering others through public readings which serve to publicize the poem, thereby putting others at risk of later posting the poem.

**********

OK, it is me again.   Don’t forget, Linda Ellis has never actually sued anyone who has posted The Dash poem on the internet.   She hasn’t gone after even her most vocal critic -April Brown.  Are her past actions a guarantee, she won’t sue you?  No they are not.   But now that you have seen in other posts, the more realistic damages you might face and have seem some tactics here that will help you, I hope you can sleep a bit easier at night.

Another’s Take on Linda Ellis and the Dash Poem

It is pleasantly surprising how much information there is on Linda Ellis and the Dash Poem  on Google.

I came across this post which provides the story of another victim (a school), and the author’s own take on the letter and strategies for dealing with Linda Ellis.

http://rankexploits.com/musings/2013/dont-post-linda-elliss-the-dash/

A Preacher’s Analysis Of The Linda Ellis Copyright Infringement Letter

I certainly do not qualify as a preacher.   However, I have come across a preacher who maintains a site you might enjoy.   There is a to his site in my blog roll.   One of his most interesting posts is located here:  http://letroll.comli.com/letter.html.

Please note that neither of us are lawyers.  Nothing in this blog should be considered legal advice.   However, I think reading his analysis will make you breathe easier.

Fortunately, I have permission to copy his post here:

I want to show you what you will receive if you dare post Linda’s poem. First, you will receive an email with a pdf attachment of a letter. The email itself will look something like this:

The attached letter is to serve as notification of copyright infringement of the poem, “The Dash.”  “The Dash” is a poem written by Linda Ellis, and she owns the legal copyright to the poem.  This registered, copyrighted work has been published and distributed unauthorized on the web site below.

Here is where you will see your website or blog link.

We look forward to hearing from you, your legal counsel, or your insurance company regarding our offer of settlement.

Sincerely,

John W. Jolin
Intellectual Property Coordinator
Linda’s Lyrics
1050  E. Piedmont Road
Suite #108-135
Marietta, GA  30062
www.lindaellis.net 
Phone:  770-508-7817

NOTICE: This message and accompanying documents are covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and contains information intended for the specified individual(s) only. This electronic mail transmission is for the use of the named individual or entity to which it is directed and may contain information that is privileged or confidential. It is not to be transmitted to or received by anyone other than the named addressee (or a person authorized to deliver it to the named addressee). It is not to be copied or forwarded to any unauthorized persons. If you have received this electronic mail transmission in error, delete it from your system without copying or forwarding it, and notify the sender of the error by replying via email or by calling Linda’s Lyrics at (770) 508-7817, so that our address record can be corrected.

We will get to the attached letter in just a minute, but first I want to point out that there is actually nothing illegal per se that I have found about Linda and her team asking you to settle out of court. I could send out a bunch of emails to people and simply ask them to give me money, and if they are willing to do it then great, but you certainly do not have to. I will expound on this when I get to the letter.

One key point I want you to understand is that when they send an email or even a noncertified letter through the snail mail signed by a man who is not a lawyer it should tell you that you should not take such an email or letter too seriously. Unless you respond, there is no way they can know if you received their email or their snail mail. This is why the best thing you can do is remove her poem from your blog or website and then ignore any emails you receive from them and they will go away. Now there may come a time when they actually start going after innocent infringers and taking them to court, but that has never happened as far as anyone knows (but that doesn’t mean it can’t). It is much easier to just go to the next victim who is willing to pay them. Think about how little time and effort it takes to send out pre-written emails with the potential of making $7500. In some cases I am guessing it only takes one email and few talks back and forth, which would amount to less than an hour of work for $7500. You can see the appeal for Linda’s team to search out innocent infringers on the web because getting one or two people to bite every month adds up to an impressive income no matter how many people had to be stepped on to get it.

Linda’s team works very hard at keeping their legal money making scheme quite. One of the ways they try to do this is by pasting in that legal sounding confidentiality statement at the end. You are in enough trouble already, so they think, so surely you would not dare break another law. However legal sounding this statement is, it is NOT legally binding on you because you have to agree to it before it can be legally confidential. For an example of this truth, read the article on the following website http://articles.chicagotribune.com/2011-08-26/business/ct-biz-0826-chicago-law-20110826_1_disclaimers-legal-obligations-binding. So, don’t pay any attention to this confidentiality statement at the end, you have the right to share anything written within the email sent to you with no legal ramifications.

THE LETTER

Now, let us look at the dandy letter you will receive. The words of her letter will be in green, but I want to make some comments along the way, so my comments will be in black.

 Re: NOTIFICATION OF INTELLECTUAL PROPERTY (COPYRIGHT AND TRADEMARK) INFRINGEMENT OF THE POEM, “THE DASH” 
Linda Ellis is the author of the poem, “The Dash” and works derivative of “The Dash” (collectively, the “Poem.”). She owns the copyright for the Poem which is registered in the Library of Congress, Registration Certificate: TXu 858-108, and she licenses its use to Linda’s Lyrics. Linda’s Lyrics also owns the trademarks filed with the United States Patent and Trademark Office for the marks, LIVE YOUR DASH and LIVE YOUR DASH – MAKE EVERY MOMENT MATTER (collectively, the Mark).

Anything you write is considered copyrighted in The USA. However, if you want to be able to sue someone one for infringing on your work, it would be more difficult to establish your case. You have the option to pay for your copyright and even create Trademarks as Linda has done. When you do this, you will have what you need to prove that your work is legitimate.

Linda Ellis makes her living as an author and inspirational speaker. She has devoted much of her adult life to creating Poem, derivative works of the Poem and delivering the messages embodied in the Poem. She has invested countless hours and hundreds of thousands of dollars in her brand, LIVE YOUR DASH. Ms. Ellis feels incredibly fortunate to make a living by providing inspiration, power and self-determination to the public.

However, the primary means by which she makes her living (enabling her to deliver her message) is from the sales and licensing of books and products containing her Poem. When others make unauthorized uses of the Poem, Ms. Ellis and her company, Linda’s Lyrics, LLC are damaged especially since each unauthorized posting of her copyrighted work perpetuates its continuing illegal distribution. Our current rate for unauthorized use and distribution of this registered, copyrighted work is $7,500.00 (US).

Unauthorized publications such as yours (no matter how well-intentioned) significantly impede Ms. Ellis’ ability to provide her message. They are unfair not only to Ms. Ellis, but also those who legitimately pay the license fee. Why pay if you can just copy and paste it for free? Furthermore, unauthorized uses of the Poem and Marks on websites and other materials in connection with other people and business confuse the public. They also dilute the impact of the public’s connection of the Mark and Poem with Ms. Ellis and her company, Linda’s Lyrics, LLC. For instance, publication of the Poem on your website makes it less likely that a potential consumer will visit our website, http://www.lindaellis.net, based on an internet search for the Poem. In other words, it diverts traffic and business that would otherwise go to her website, to your website, promoting you and/or your organization, not the Poem’s creator, Ms. Ellis.

In order to foster creative development, intellectual property (such as art, literature, brands, etc.) must be protected. There would be little incentive to create works of art and literature and develop brands if others were allowed to freely use them. However, unlike other forms of property, intellectual property is very easy to take, particularly with today’s technology. A few clicks on a keyboard and just about anyone can post any copyrighted work or trademarked brand to their internet site.

There are good points in this section, which shows that Linda is very protective of her poem. Yes, posting her poem without permission or paying her a fee makes it unauthorized. The more it is posted by others, the more unauthorized uses there will be. Is her company damaged by this? Maybe in some ways, but everyone knows that the more your work gets put out in the world by whatever means, the more popular you become and the greater the opportunities you will have to make even more money. There are many proofs of this especially in the song industry. Thanks to YouTube, many new artists have been discovered by their copyrighted songs being used in unauthorized ways. So, the benefit of Linda’s poem being spread on the internet unauthorized, has the potential to help grow her poems. It’s kind of like having free advertisement. When a person reads her poem somewhere it can easily cause a person to do a search for it, which will lead that person to Linda’s website, where that person might buy her products that would not have known about them until that person read her unauthorized poem.  While technically it wrong to share and paste a poem like hers, the bright side is that it does make her more money in the long run.

However, Linda has taken her poem to a whole new low by taking advantage of those who innocently paste her poem and give her credit because they were touched by her poem. Many of these people she goes after are those who have lost a loved one, and now with no warning, she wants you to pay $7500. I do not know how much she charges to speak or to license her poem, but I doubt it comes close to $7500. Even if you bought everyone of the products she offers, it would not come close to that figure.

Please keep in mind that the people she goes after do not have high traffic to their websites, and they do not post her poem to promote their website. They do it to honor the writer and the message. While her poem posted on other websites will eventually register with the search engines, her own website will most likely be ranked higher because she has had her website longer and more of the content of her website will be related to her poem. If there is any loss of money from these people posting her poem, I suspect it would be a very low figure.

The last part of the letter, is where the Linda’s team like to show their teeth, growl, bark and look really mean. This will be a longer reading, but I want to wait to make my final comments until after you have read the scariest part of this letter.

Accordingly, federal copyright and trademark law affords copyright and brand owners, such as Linda’s Lyrics, the exclusive right to reproduce their works and use their brands in any medium. Unauthorized publications of The Dash in connection with (This is where your company, or name will be inserted into this letter) constitutes federal copyright and trademark infringement pursuant to 17 U.S.C. § 202 and 15 U.S.C. § 1111, et. seq. It is also a violation of state unfair competition laws.

Because of the ease of infringement, federal law authorizes copyright owners, like Ms. Ellis, to automatically recover statutory damages of up to $30,000.00 for each copyright violation in addition to the automatic recovery of all attorneys’ and costs involved in pursuing the copyright violation. 17 U.S.C. §§ 504(c)(1) and 505. If a court determines the infringement intentional or “willful,” the law authorizes a court to award statutory damages of up to $150,000.00 per copyright violation. 17 U.S.C. § 504(c)(2). Courts will find “willful infringement” when someone continues to publish copyrighted material after receiving a letter like this from the copyright owner requesting its removal.

As long as you take the below steps and cease all infringing uses of the Poem and Mark within ten (10) days of the date of this letter, we will assume you did not act with the requisite intent necessary to impose “willful” infringement and will not seek to impose damages for willful infringement.

· Take the Poem and any uses of the Mark down from the Website and any other website in which you own or have control;

· Destroy any marketing or other literature in your possession, custody or control which contains any material portion of the Poem and or the Mark on the Website or any other website(s) that you own or have control.

We must also request a reasonable amount of compensation for the infringement. Paying attorneys and staff to enforce our copyrights is expensive. We could not afford our enforcement efforts if we did not recover a reasonable sum from those who have infringed. Moreover, it is not fair to those who we authorize to make use of the Poem for a royalty to not require those who do not have permission to pay a fair amount for their unauthorized use.

Based on your unauthorized use and contributing to the perpetual unlawful distribution of registered copyrighted work of the Poem, we ask that you pay $7,500.00 to resolve our claims of trademark and copyright infringement.

We do We do not enjoy lawsuits and hope to not have to resort to the courts; however, Ms. Ellis has proven that she has, and will, protect the value and integrity of her copyrighted works. In the case of Ellis v. Aronson, filed in the Northern District of Georgia, Ms. Ellis received a judgment the amount of $269,000.00.

This letter is sent as a compromise to resolve our claims of trademark and copyright infringement based on the information we have gathered to date. Please contact me at the number or email below to resolve this issue. If we are not able to reach a mutually agreeable resolution, Linda Ellis and Linda’s Lyrics reserves all rights to pursue this matter in the courts to the maximum extent authorized under the law.

Please contact me via email, thedashmanagement@lindaellis.net, or telephone, 770-508-7817 within ten (10) days to resolve this matter. 
We look forward to your timely response. 
Sincerely, 
John W. Jolin 
Intellectual Property Coordinator 
Linda’s Lyrics 
1050 E. Piedmont Road, Suite 108-135 
Marietta, GA 30062 
PHONE: 770-508-7817 
FAX: 770-485-4187

This last section of the letter can make anyone cringe and start thinking that $7500 is not that much to pay. This exactly what they want you to think, and I am going to show how this text is carefully written to manipulate you and scare you beyond reason.

One thing you need to understand is that the copyright laws are old and have not been adjusted to include the internet. They are also kind of vague, which usually leaves a judge making the decision based on what he hears. You are also protected somewhat under the Fair Use Law, which is also very vague, and is left up the judge to decide if something is Fair Use or not. No one can speak with certainty when it comes to what a person will or will not receive due to innocent infringement or even willful infringement. One judge may side with the author and give them a small or a larger amount of money, while another judge may side with the defendant. The laws certainly need to be undated and it would be wonderful if they actually made them more specific instead of being so vague.

I want you to read this sentence again from the letter: Because of the ease of infringement, federal law authorizes copyright owners, like Ms. Ellis, to automatically recover statutory damages of up to $30,000.00 for each copyright violation in addition to the automatic recovery of all attorneys’ and costs involved in pursuing the copyright violation.

There is only one part of this sentence that is true, which is the law does state that an author could be rewarded up to 30,000 for innocent infringement. However, the rest of it is not true and it seems to me that it should be illegal for her to make such false claims. Let us take a closer look.

This first part is not a big a deal, but I could not find anywhere in the copyright law where it said the reason this law was put into place was because of the the ease of infringement. ”It was put into place to protect an author’s work plain and simple.

Nothing in the copyright law says that an author will automatically recover statutory damages of up to $30,000.” There is nothing automatic about it. The author will have to sue the defendant to try and get money from them. If you look at the copyright law http://www.copyright.gov/title17/92chap5.html you will notice that it says that an innocent infringer may have to pay a sum of not less than $750 or more than $30,000 as the court considers just. Linda conveniently leaves this part out of the letter because it sounds scary to say up to $30,000 instead of $750-$30,000. Under most cases, innocent infringers will not even have to pay $750 because in the next paragraph of the copyright law, it says:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

From what I have read, it is hard to prove that a person is a willful infringer. From what I have been hearing, if Linda took you to court, which she would have to do in your district, about the most you would have to pay as an innocent infringer is $200. There would have to be something major against you like your infringement causing  a great deal of money loss to Linda for a judge to ever make it go to the max of 30,000.

Linda also claims that her attorney fees will automatically be recovered as well, but the copyright law says this:
 505. Remedies for infringement: Costs and attorney’s fees In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

Notice, the judge MAY ALLOW. It is not automatic or a sure thing. Based on this law, if the author loses, not only will the author be stuck with his or her legal fees, the author might have to pay the defendant’s attorney fees. No wonder she says, We do not enjoy lawsuits and hope to not have to resort to the courts; She knows that there is a strong possibility that she will only get $200 for her trouble and may not receive compensation for her lawyers.

I love this next sentence:

We must also request a reasonable amount of compensation for the infringement.

I would not have a problem with a reasonable amount, but to most people $7500 is not reasonable.

Linda’s team uses one last powerful example to scare you as they mention the only copyright case that we know of that she took to court and won. This little jewel is thrown in there to prove that she will go to court and she can win big. In this particular case she was awarded 150,000 dollars (the max) and 119,000 compensation for her lawyers. What she does not tell you is that this case was against a willful infringer who did not care. From the best we can tell this man never did pay her anything, instead he is serving his time  in prison. So, this court case has nothing to do with innocent infringers, and in my opinion, it is put in this letter to make those receiving it think they could end up having to pay that amount.

I take my hat off to Linda and her team. They have found an effective way to scare innocent infringers into paying a large sum of money that they do not and should not pay. Again,  I want to stress the point that I am not a lawyer, and what I have I said about this letter is based on my opinion from the research I have done. I am not saying that Linda does not deserve any compensation for those who infringe on her poem, but that $7500 is way more than one should have to pay in my opinion. If you feel that $7500 is fair, then pay it. If not, don’t pay it. If you want to invest your money into a lawyer to deal with this, then do it. You have my opinion on the matter, make your own decision. At least now, you know more about what you are facing than you did before.

You received an email from Linda Ellis — Take A Breath

The purpose of this blog is to help those “innocent infringers” (I will define this later) who have received an email from Linda Ellis and are now saying to themselves:

“I liked that poem, and now she wants $7500 from me.  I don’t have that kind of money.  I am scared.”

This blog is for you.   Very, and I mean VERY shortly, I will have a lot of information for you that you can read, digest, and use to make your own decisions.

All you have to do now is breathe and don’t respond to the email — yet.   Everything will be ok.   I would also suggest that since you received a very nasty email, that you do the neighborly (and right) thing and take her “Dash Poem” off of your website.  More on why later.