I get into a lot of conversations about how to use CDL’s and CDOs. I guess the first part is to make sure people understand the difference. A Cease and Desist letter can be written by anyone but if you are smart you will use a lawyer for them unless you are not planning on legal action down the road. You can write them and do OK if you are careful. A Cease and Desist Order is normally written by a court after a trial or hearing. In copyright infringement cases you can go to a federal court and ask for a restraining order to stop someone from infringing and get some relief. The cdo is backed by the full weight and power of the issuing government agency or court.
Are the letters or orders necessary in the string of things you can do or have done? The answer is NO. You have no obligation to send one to anyone. Many people just get a knock on the door and it is federal marshals with paperwork and sometimes subpoenas for paperwork and equipment. There is no requirement for a person to be warned before action is taken. They can litterly knock on your door at 2 AM and walk in and take things if they so desire once the court have ordered it. They do not need a search warrant as they are just taking what the court has ordered. The court does not set the time of day or night they are supposed to collect or notify someone. They serve them day and night depending on how busy they are with other items. Night time serving is not all that common according to what I was told. Mostly it is used to confuse and get information for criminal offenses.
If you remember, I have spoken many times about being careful in dealing with things like this and why it requires solid information and not internet information. You need to understand that a simple cdl can get into much more serious items. One thing I see on the internet all the time is the theory that if you send someone a cdl they can file for a declarative type action in a court away from you. Can they? Yes. It is a legal maneuver to stall a case if there are registered copyrights. The only thing that filing does is increase the costs unless they have a legitimate public domain claim or fair use claim. One very well known pro infringer site even talks about how little a chance those cases have. They also use a figure that less than five percent of the cases are about ownership. The rest are cases for fair use or public domain. The innocent infringement cases are dying out as the courts are ruling more and more that you should have known especially with all the news and stories about copyright infringement in the last 10 years. This is not a new problem by any means and just because someone has not paid attention to the stories and news about it does not mean they are innocent. It means they did not care about it. Public domain does not come into effect if the author is still alive unless they publicly in writing state it is public domain. Fair use is the only hiding place and it is not a very good one. Some of the latest court rulings have restricted the use of that defense. You need to consider that you are admitting to copyright infringement if you use fair use as a defense.
Should you use a CDL letter? That is a matter between you and your attorney. Every case is different. I personally think there are times you do and times that you do not. I have had pretty good luck not sending them but as time goes by it becomes clear that some people will be getting them along with subpoenas and other documents. If you have to go down that road, make sure of your grounds and use all means at your disposal as the infringing party has made it clear they could care less about your rights and property or they actually want a fight.
Disclaimer: I am not an attorney. These are my personal opinions and general information only. This is not legal advice and should not be used as such.