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Court Says You Can Copyright a Cease-And-Desist Letter
Posted by
ScuttleMonkey
on Sat Jan 26, 2008 06:36 AM
from the chilling-day-for-free-speech dept.
from the chilling-day-for-free-speech dept.
TechDirt has a follow up to a case they covered back in October where a law firm was trying to claim a copyright on the cease-and-desist letters they sent out. Public Citizen poked a number of holes in this claim and invited the lawyers to "try it." Well, unfortunately the lawyers decided to bite and what's more, they actually got a judge to buy it. The news was announced by the victorious lawyer who now claims he can sue anytime someone posts one of his cease-and-desist letters. "The copyrighting of cease-and-desist letters is an easy way for law firms to bully small companies who have committed no wrong, but who have no real recourse to fight back against an attempt to shut them up via legal threat. Until today, many companies who were being unfairly attacked by companies and law firms misusing cease-and-desist letters to prevent opinions from being stated, had a reasonable recourse to such attacks, and could draw attention to law firms that used such bullying tactics to mute any criticism."
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How Not to Write a Cease-and-Desist Letter 235 comments
In our overly litigious society it seems that many companies are all too happy to fire off a cease-and-desist letter if they see something they don't like. Many times these letters end up online just causing further embarrassment for the company. One such company has decided to try scaring their targets out of this response by including a copyright notice for their cease-and-desist letter. Public Citizen has fielded one of these dumb letters and has invited them to try to assert their cease-and-desist copyright (which isn't even registered).
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not as important as summary makes out (Score:5, Insightful)
Re:not as important as summary makes out (Score:5, Insightful)
But it surely will make the bullied thinking about even quoting pieces of the cease-and-desist-letter since who will decide what is fair use? Perhaps the bullied will be bullied with another cease-and-desist letter?
Parent
Re:not as important as summary makes out (Score:5, Interesting)
Court orders and judgments too should be copyrighted, any other judge, if he/she is not creative enough to craft his own flowery words for the judgment should be tried for copy-right violations!
Parent
Re:not as important as summary makes out (Score:5, Insightful)
The penalty for "privatizing" a document is that it cannot be made part of a "Due Process" which the constitution requires to be open.
Only a judge can "Seal" official court documents.
If they want a "secret justice process" they should get a prior restraining order sealing the process, but they need meaningful cause.
This decision should be overturned. more specifically, the company should get a ruling that a "secret demand" is inconsistent with due process, and therefore constitutes an "unlawful threat".
The great tradition of law in the west is openness. If Rosa Parks cannot tell anyone she was thrown off a bus for sitting, there could be no Birmingham bus boycott.
In a very real sense, the attempt here is to throw someone off the bus, while avoiding the public outrage at the injustice.
This is the worst ruling I've heard of this morning.
AIK
Parent
Re:not as important as summary makes out (Score:4, Insightful)
By definition, the power of a C&D letter is the rights which they bring to a later copyright infringement suit.
In summary, IIRC, "Malice" can be implied where a C&D letter has been sent and ignored, this allows for "Punitive" damages in addition to "Real" damages.
Parent
Re:not as important as summary makes out (Score:5, Insightful)
Shakespeare had it right ...
The biggest impediment to justice is lawyers. Too often, even if you win, you lose, and the only real winners are the lawyers for both sides.
As for their copyright claim - screw that too - post the notices on a server outside the US - problem solved.
What next - a claim that a hold-up note or a written death threat is copyrighted? Or an oral death threat, or even a murder in front of a crowd - since it meets the "public performance" criteria?
Lawyers like to compare themselves to professionals like doctors or nurses - in polls, the public rates lawyers ethics and honesty closer to used-car salesmen, and lawyers have only themselves to blame.
You want justice? Fire your lawyer - paying a lawyer is, in most cases, like feeding a cockroach. It just encourages them. Argue your case yourself. You're fucking some lawyer out of $$$ (since you didn't hire them), and the other side can no longer use the "they'll settle out of court since it will be cheaper than litigating the case."
And before someone says "that doesn't work" - I'm doing it right now. Idiot ex trying to claim $70,000.00 from me, her lawyer "let it be known" that they'd like an offer to settle out of court for "just a few grand", and my response - in court, at the last hearing - was "Not a penny." I argued for a 2-day trial on the merits, and her lawyer started complaining about the additional burden a 2-day trial will be to his client (awww ... whe'll have to spend another $5k on top of what she's wasted already).
Trying to get people to "settle out of court" over bogus claims is just legalized blackmail. The sooner we all help each other exercise our rights to argue our own cases, the sooner bullshit like this ends.
Parent
Re:not as important as summary makes out (Score:5, Funny)
Funny, that. I was thinking of some other kind of professionals.
You know, the ones that would do just about anything for money, and if you feel dirty afterwards, well, that's your problem.
What are they called... prot... prost... ah, yes: politicians.
Parent
Politicians (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
You want justice? Fire your lawyer - paying a lawyer is, in most cases, like feeding a cockroach.
As much as I want to agree with that statement... Many of our local governments are set up so it's impossible to not use one. My friends were having an amicable divorce. No disputes, no kids, they just wanted to break it off. So they followed all the rules.. researched all the paperwork required... filled out all the paperwork. All this with no help from the grouchy county employees at the court house. So they went it alone. Guess what they omitted one thing on their paperwork and they have to sta
Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
The lawyers are claiming rights specific to the DMCA - that doesn't hold under Berne. You can't "export" the DMCA to other countries that are limited to the Berne Convention.
Re: (Score:3, Insightful)
That is SO bullshit. Lawyers have been trying to re-interpret Shakespeare, but it doesn't make sense. Try this on for size [spectacle.org]. Only a lawyer would even try to make this into a defense of lawyers, and expect people to actually swallow it,
Lawyers are an impediment to justice. BTW, the examples you quote were CREATED by lawyers. People should be able to appeal directly to judges, without the rigamorole that lawyers love to use to intermediate themselves between you and the law.
Habeus corpus wasn't created by
Re:With rulings like this... (Score:5, Informative)
The ruling that a letter can be copyrightable is nothing new.
In order to claim copyright in a work, the author must give the proper notice as required under Chapter 17, Section 401 of the US Code. This section requires that the work must contain either the word "copyright" or the (c) symbol, followed by the year of publication and the name of the entity claiming the copyright. If the letter published on the Public Citizen website is complete, this information is missing.
Even though Mr. Dozier's press release mentions all of the possible penalties for the infringement of his firm's copyright, they seem to have forgotten Chapter 17, Section 412 of the US Code. That section includes a rule that neither statutory damages nor attorneys fees are available remedies unless the entity claiming copyright has followed Section 407 which requires mandatory deposit of two copies of the work with the Copyright Office within three months after it was initially published. Since the letter was apparently sent on October 5, 2007, the time for this mandatory deposit ran out three weeks ago.
Having said all that, I'll agree that the rich and powerful seem to be using the law to stomp on the rights of the average citizen. However, I don't think that the answer is bloodshed; try contributing to groups like Public Citizen and the Electronic Frontier Foundation who are trying to protect our rights.
Parent
Re:With rulings like this... (Score:5, Informative)
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Re:With rulings like this... (Score:5, Informative)
Parent
Re:not as important as summary makes out (Score:4, Interesting)
Hi, I'm a U.S. lawyer and I agree with you. (How often have you heard that?)
Besides, there is an absolute safe harbor for persons wishing to post about scams online. Truth is a defense to libel. And for that matter, to slander per se. Just be sure what you post is the truth, and they can't touch you. They might sue, of course, but it would be the kind of case that could be dismissed on affidavits and summary judgment. And, with judicious use of Requests for Admission, you might even make the pay them cost of proving true things they failed to admit. It's speculative to say so, but you might even get attorneys' fees and sanctions for filing a frivolous lawsuit or pleading. (Don't trust this as legal advice, of course.)
The important teaching of this decision is that sites which ENCOURAGE the posting of "scams" rather than simply soliciting the posting of stories about the subject, be they good or bad, do meet the legal test for defamation. Perhaps this is how it should be; or you might think so if your small business were attacked with lies and attempts to mobilize the blogosphere.
Now before the negative mod points come whistling in like mortar rounds, let me say I'm all in favor of using the Net to expose scams, and doing so should be free from repercussions. But you know, that's the way it IS, right now. Just tell the truth and don't say "Company X is a sleaze, submit your stories to prove it". Is it much different, or less satisfactory, to say "In the interest of performing a public service for our readership, we invite you to post comments, good or bad, about the business practices of Company X"? Because you can do that. (Though only the foolish would rely on an internet post such as this one.)
And for God's sake, don't serve ads for competitors of Company X, or suggest your blog will dissipate into the blogosphere if you get paid. You CAN use the net for People Power with very few accommodations to law.
Parent
Re: (Score:3, Insightful)
The actual text maybe copyrightable, but one still has fair use, one can excerp bits and rewrite other parts. This ruling does not stop people drawing attention to the fac that they are being bullied. It's daft but its not fatal.
I think everyone's missing the key point here. Neither you nor your lawyers can make any form of copy of the material or even read it out loud (that's a performance). For that matter the court can't either. The idiocy here has nothing to do with publishing the material, you can't even use it to defend yourself in court with this ruling. Fair use doesn't cover making copies for your lawyer. It certainly doesn't cover making the material part of the public record in a court case.
Re: (Score:3, Informative)
Re:not as important as summary makes out (Score:5, Informative)
Parent
Re: (Score:3, Interesting)
You still can. This ruling only states that if such a letter is posted anonymously, there enough teeth in copyright law to require disclosure of the poster's identity. If there is a proper lawsuit subsequently filed, you are still entitled to a "fair use" defense, as well as a "free speech" defense, and whatever else.
The underlying concern is that someone can sue
Turn the tables? (Score:4, Insightful)
Can I send 40 different versions of cease and desist letters to the US Copyright office and then sue any law firm that uses one that looks a bit too similar to one of mine?
Is an infringing cease and desist letter still valid?
Is "Copyright Troll" going to be a new buzzphrase?
Methinks this ruling will open up cans of worms the likes of which have never been seen, especially once the model is applied to the hundreds of legal documents that are basically boilerplate versions of each other (think leases, EULAs, credit agreements, and divorce documents for starters).
Re:Turn the tables? (Score:4, Funny)
Parent
Re:Turn the tables? (Score:5, Interesting)
Parent
Satire is still fair use: (Score:4, Interesting)
Make it horrible: "We will send hit men to your home and torture your family to death"
If the law firm protests about your "satire" let them show the real letter to prove the satire is unfair.
Parent
Re:Turn the tables? (Score:4, Funny)
Parent
More to the point... (Score:5, Funny)
Re:More to the point... (Score:5, Funny)
Parent
This says a lot (Score:4, Insightful)
The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter...
That figures. Idaho potato rule: If they're big enough, they're old enough. It could only be less surprising if the ruling had originated in Utah.
Re: (Score:3, Interesting)
A RESOLUTION encouraging the purchase and vigorous use of the USS Louisville 688 VLS Class submarine.
WHEREAS, in the past few years the scourge of the casino riverboat has been an increasingly significant presence on the Ohio River; and
WHEREAS, the Ohio River borders the Commonwealth of Kentucky; and
WHEREAS, the siren song of payol
From the judgement... (Score:5, Insightful)
To qualify for copyright protection, a work must be original to the author. Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 345 (1991). Original means that the work was independently created by the author and possesses some minimal degree of creativity.
Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?
If the cease and desist letter were in haiku form, maybe. If it were sung to music, perhaps. But if its purpose is strictly as a utility and legal document, then where is the creative component?
The required level of creativity is extremely low; the work must "possess some creative spark, 'no matter how crude, humble or obvious' it might be." Id. (internal citations omitted). Copyright protection does not extend to facts or ideas. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991).
So? What is that creative spark?
17 U.S.C. Section 102(b). 43SB asserts that the Sheppard Letter is essentially a work detailing a process for the owner of the Website to follow in taking down remarks made about Melaleuca and its CEO.
What is the creative component of "take this off your website?" If merely offering such a "process" is the creative spark, then might I suggest it is in the public domain? And if not, surely it is a derivative of the works of others...
Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?
I can't wait for people to issue takedown letters on takedown letters on takedown letters. In fact, I would like to now and forever establish as prior art (and creative spark) my work entitled the recursive cease-and-desist letter!
"The recipient of this takedown notice is hereby ordered to take this very take-down notice from your Web site immediately."
See, it really is creative expression: An expression of irony and disgust.
Re:From the judgement... (Score:5, Insightful)
How is a cease and desist letter related in any way to "Science and useful Arts"?
I think that Idaho judge has smoked too many potatoes.
Parent
Re:From the judgement... (Score:4, Informative)
It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').
Parent
Re:From the judgement... (Score:4, Informative)
Cooking is a useful art, and recipes can be patented if they meet the requirements of a patent. This does occur from time to time -- there's a patent for a peculiar kind of peanut butter and jelly sandwich, IIRC -- but often recipes lack novelty or nonobviousness, or the inventor doesn't bother getting a patent. The written expression of a recipe -- as opposed to the process for cooking that the recipe describes -- is copyrightable if sufficiently creative. But anyone could copy the process and reword it, and where the wording was not creative or original (e.g. "Pre-heat oven to 350 degrees") that wouldn't be protected at all. The difficulty in writing succinct, clear, copyrightable recipes is such that most people don't bother.
Parent
Like I want to read all of that lawyer speak (Score:4, Insightful)
2) Blur 90% of the text.
3) Post it.
4) Build a headline from the nastiest sentence.
5) Decide whether you're going to fight or switch.
6) Move on.
Does this also mean (Score:5, Interesting)
I say that because of a recent story about a guy who sent a girl a mean email and she published it on her blog and he received death threats in response...
FYI (Score:5, Informative)
http://www.citizen.org/documents/directbuycd.pdf [citizen.org]
A Review (Score:5, Funny)
In the work's opening, we are introduced to the main characters, along with two settings (Virginia and Arizona) and a modern time period to help orient the reader. I was particular moved by the bold, overly-large font that portrayed (to your humble reviewer) the confidence and professionalism of our protagonist, especially when contrasted with the smaller left-justified (bravo!) intro that followed (no spoilers here!). The pure wit and joy I experienced by the artist's inclusion of a (purely tongue-in-cheek, I assume) disclaimer that this artistic work is only intended "for negotiation and settlement purposes" is difficult to communicate, but suffice it to say that by the third or fourth paragraph I was dabbing tears of pure joy from my cheeks with a handkerchief. Kudos!
The backstory that followed was a bit dry for my taste, but it was over quickly and followed by a riveting bulletpointed list of accusations that had me on the edge of my seat.
My friends, I do not want to spoil any of the chills and surprises that await, but do not pass up on your chance to experience this instant classic-- that is, before it's followed by the inevitable movie version.
Parent
Public Citizen Is a Fringe Operation (Score:3, Informative)
If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case. Not just the dreamers of the techno-utopia who believe that somehow everyone is going post all of their work for free and the farmers and carpenters will be so inspired that they'll just build us McMansions and fill the fridge with steaks.
Court did not rule on copyright issue (Score:5, Informative)
The point of copyright (Score:4, Insightful)
Do some lawyers, and apparently some judges, even remember why copyrights exist anymore?
Copyrights are there to among other things let the copyright holder be credited for the work and benefit financially from the work through being an exclusive distributor of the work.
So a big WTF at this.
Re:The point of copyright (Score:4, Insightful)
Parent
Re:The point of copyright (Score:4, Informative)
Indeed, it also a time limited monopoly not intended to last to the end of days, even though some American corporations tries to make it that way. One of the reason it is a time limited monopoly is in recognition of the fact that science and art is not done in a vacuum but builds upon work and ideas of others.
Parent
Infinite monkeys Inc (Score:3, Funny)
I represent Infinite monkeys Inc. As you may be aware our company has bean attempting to recreate the complete Works of Shakespeare.Unfortunately we are still several melenia away from the conclusion of this project.
However our research has turned up all variations on Cease-and-Desist letters. And therefor we claim copyright on all such works.
Yours
Lord High Peanut Counter
Why not... (Score:3, Interesting)
This is not as important as the summary makes out. (Score:3, Insightful)
The only issue here was whether to quash the subpoena to identify the person who posted the C&D letter. All you have to show to support such a subpoena is a prima facie case. That means that you only have to show that you have met the initial elements of your claim. Meaning that they posted something and it was your copyrighted work.
The question of whether this is Fair Use (and I can't imagine that it wouldn't be) has not been decided. That's not part of the prima facie case of copyright infringement, rather, it is an affirmative defense that the defendant must raise and argue.
Really, the judge should have taken note of the First Amendment implications of all this and quashed the subpoena anyway.... I mean, really.
The Defendant will now have to litigate the case, but if he wins, the "precedent" will be just as persuasive, if not more.
Nice, short summary of what was really decided (Score:5, Informative)
Re:yes (Score:5, Funny)
Parent
Don't worry, it Conflicts with my patent (Score:5, Funny)
Parent
How does this promote the "useful arts"? (Score:5, Insightful)
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
Constitution of the United States of America
Article 1, Section 8
The question I would pose to the appeals court would be how does allowing someone to copyright a cease and desist letter lead to the progress of science and useful arts?
The clear answer is it does not.
This should be the challenge to this decision.
Cheers -
Jordan
Parent
Re: (Score:3, Insightful)