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Notice-and-action niceties

Here is an example of a very cute cease-and-desist letter:

In order to resolve this matter, because you are both a Louisville "neighbor" and a fan of the brand, we simply request that you change the cover design when the book is re-prnted. If you would be willing to chang the design sooner than that (including the digital version), we would be willing to contribute a reasonable amount towards the costs of doing so.

This tells us actually there is no infringement going on here. Probably the use described in the letter simply falls within some form of fair use, or actually it cannot in any way be considered an infringement because consumers are not stupid enough to mix up Jack Daniel's Tennessee Whiskey with "a comic [literary] masterpiece about the fast food industry, booze, and the necessity to choose happiness over work and security."

Because these letters still get perceived as legal threats, even when written in such kind language, don't forget to reply to the Commission's consultation on notice-and-take-down measures!

Remember, that when a regulatory framework specifies that service providers or online platform providers have to act on notices that provide no legal certainty, which can only be established by a court, we run a serious risk of take-down-notices being used to get rid of inconvenient content.

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