Court Says You Can Copyright a Cease-And-Desist Letter 349
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."
not as important as summary makes out (Score:5, Insightful)
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:1, Insightful)
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.
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.
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.
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?
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.
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)
Re:not as important as summary makes out (Score:2, Insightful)
If I get something in the mail I have not asked for I can do what ever I bloody want with it. No one can send me a letter then claim some 'rights' to it? I have not accepted any license or whatever as I do when I actively acquire something like a book or a CD. Of course, if they put an EULA on the envelope saying "By opening this seal..." they give me the option to not read it and hence as a legal notice it would fail.
I guess this is one of those "Only in the USA" kind of things...
Re:The Pirate Bay legal page (Score:3, Insightful)
Overrule-able? (Score:2, Insightful)
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.
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.
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
Re:not as important as summary makes out (Score:3, Insightful)
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 start the whole process over again and they're out $600. The system is set up in my county so you MUST have a lawyer to get divorced. They were even told by the grouchy civil servants that that it would be stupid not to get a lawyer.
They're dishing out the $1400 this second time for a lawyer. They don't have to do ANYTHING now. They just want to move on with their lives at this point so they gave up and paid that cockroach.
There is one good trend I'm hearing from the nearest major city Philly. People are actually encouraged to not get lawyers for their divorce and there is gov't programs for legal advice to make your paperwork go smoothly.
Politicians (Score:5, Insightful)
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.
Re:not as important as summary makes out (Score:1, Insightful)
I agree with those saying the letter is an implement being used in the course of legal due process (it is a requirement of the DMCA to compose and send these letters) and thus should not be afforded the protections of copyright (much like everyday court documents).
Re:not as important as summary makes out (Score:3, Insightful)
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.
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
Re:not as important as summary makes out (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 lawyers - it was a judge who "read in" the requirement. An olden time equivalent to today's "activist judges" that the government so hates.
If you want a real legal opinion, don't ask a lawyer - ask a judge. Lawyers opinions are like assholes - they've all got one, and at least half the time its full of shit, and the judge tells them so.
Yeah, right - why should it be limited to lawyers? Why shouldn't you or I be able to fight if someone is unlawfully imprisoned? Oh, right - we CAN. And we don't need a lawyer to do it for us. They don't have some magic lawyer pixie dust that give them powers greater than any other citizen.Those lawyers really helped bring that war criminal Bush to justice, didn't they? Not! - it wasn't in their "best interests", I guess. How about those illegal wire taps and phone intercepts? Lawyers did a real good number stopping them! Riiiight ....
We're more dependent on the media than lawyers when it comes to exposing wrong and preserving our rights. Problem is, "news" produced by FAX or CNN is usually so ingratiating to the administration, you wonder how they managed to get the shit stains off their noses before going on camera.