Can you still be sued for copyright infringement if you comply with a cease and desist notice?

Question

1. Can a copyright holder sue an infringer without first sending a cease and desist notice?
2. If they do send a notice and the infringer complies, can they still sue?

Answer 1

A cease and desist letter is not binding or mandatory (for copyright infringement, and in most other circumstances). You are not required to send such a letter, and even if you do, any vague suggestion that compliance guarantees that the future plaintiff will not sue is non-binding. Such a letter simply warns the recipient of possible consequences of continuing the action. The closest connection to an enforceable cease and desist letter in the case of copyright infringement is that under DMCA, a plaintiff may send a certain kind of cease and desist letter to an internet service provider, and if they comply (etc.) the provider cannot be sued for contributory infringement.

Answer 2

Yes, they absolutely can sue without sending a C&D.

Yes, they can sue if you comply with their C&D; however, the entire point of sending the C&D was to hope for an expeditious end of the infringement. So suing anyway has several bad effects for them:

• it defeats the purpose of sending the C&D, i.e. conflicts with their own intent.
• if they can't show the infringement is significant or repeated, pursuing damages makes them appear arbitrary and vindictive, which weakens their case in the eyes of a jury and in the forum of public opinion.
• it telegraphs to other infringers that they don't honor the gentlemen's agreement of "comply with C&D and we won't sue". This reduces the effectiveness of their C&Ds in the future, making future infringers more likely to dig in their heels and fight.

However, they might reasonably sue if it is later discovered that their damages are much worse than were thought at the time of C&D issuance.