| March 5, 2004 By Certified Mail, Return Receipt Requested and By Email usveterandispatch@earthlink.net Ted Sampley U.S. Veteran Dispatch P.O. Box 246 Kinston, N.C. 28502 Re: vietnamveteransagainstjohnkerry.com Dear Mr. Sampley: Please be advised that this office represents the professional photographer George Butler. The above-referenced website is currently hyperlinking to a website which displays an infringing photograph, and is making false statements about this law firm. This must be remedied, or our client and this firm will be forced to commence legal action against you. Your online service provider, EastLink, was contacted by this office regarding two photographs taken by Mr. Butler that were being used without permission on your website. To ensure compliance with the Digital Millennium Copyright Act (17 United States Code §§1200 et seq.), EastLink removed the infringing photographs on March 4, 2004. In response, you posted the above-referenced statements and hyperlink to http://www.grunt.com/forum/topic.asp?TOPIC_ID=9531, a site displaying one of the infringing photographs. It is well-settled that "a party may be liable for contributory copyright infringement where knowledge of the infringing activity, it induces, causes or materially contributes to the infringing activity of another." A&M Records v. Napster, Inc. 114 F. Supp.2d 869 (N. Cal. 2000). Accordingly, you are still liable under federal copyright law for posting the hyperlink. Moreover, the statement that "lawyers representing John Kerry's interest threatened our Internet server with legal action unless the picture was removed" is a false statement of fact. As stated above, this firm represents George Butler. John Kerry is not, and has never been, a client of this firm. In addition, we did not threaten your Internet server, EastLink, with legal action. Rather, our letter and phone calls were required by law to afford EastLink the opportunity to take advantage of the safe harbor provisions of the DMCA that protect the interests of online service providers before commencing an action against any of the websites they host. Thus, you remain in violation of copyright law by continuing to link to the above referenced website and have published false statements of fact on your website, which is actionable as well. You must immediately remove the hyperlink and the false statements from your website. If you have any further questions regarding this matter, please do not hesitate to contact me. Very truly yours, Nancy E. Wolff cc: George Butler |
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