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How Not to Write a Cease-and-Desist Letter
Posted by
ScuttleMonkey
on Mon Oct 08, 2007 11:39 AM
from the love-seeing-bullies-get-bullied dept.
from the love-seeing-bullies-get-bullied dept.
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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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 SLASHDOT TROLL. (Score:5, Funny)
Re:HOW NOT TO WRITE A SLASHDOT TROLL. (Score:5, Funny)
Proust in his first post wrote about wrote about - (Score:3, Funny)
2) "In Search of Lost Time Posting to
Ssh! (Score:5, Funny)
*READ BEFORE POSTING PLEASE* (Score:5, Insightful)
2. You DO need to register it before pursuing legal action in the US AND damages are limited to actual damages, not statutory damages. Legal fees expended in defending the copyright are also ineligible to be claimed in this case.
There are about 50 posts in this thread already going back and forth on this point and it's really clouding up what is a good discussion.
Re:*READ BEFORE POSTING PLEASE* (Score:5, Insightful)
From its content alone, your post is completely indistinguishable from any other post by someone who claims to know how copyright works in the US. It should be obvious that just because you know you're right, that doesn't mean the rest of us can tell that just because you sound certain about it. So, please post a link to a reputable reference, rather than just adding another post going back and forth on the issue and clouding up the discussion.
(FWIW, I think you're right about this. But it would add a lot more to the discussion if you could actually include a reference.)
Re: (Score:3, Informative)
I didn't want to take credit away from those who posted proper links an
Re: (Score:3)
Unless I'm mistaken (I know that its scary to contemplate that somebody posting on Slashdot might actually be wrong), you could put links to those messages that have the good links into your message. That would actually have saved some people from wading
Damages limited to actual damages? (Score:3, Insightful)
Re: (Score:3, Informative)
You do [need to register it before pursuing legal action in the US]? News to me. Could you cite a reference?
17 USC 411 prevents the action (only applies to "United States works", which includes works first published in the United States) and 17 USC 412
Re: (Score:3, Funny)
Good idea / bad idea (Score:5, Informative)
How to get *good* press: http://farmersreallysucks.com/editorialgetafirstlife.shtml [farmersreallysucks.com]
-nB
In the UK... (Score:5, Informative)
Re:Good idea / bad idea (Score:5, Informative)
(A) Fair use of a famous mark by another person in comparative
commercial advertising or promotion to identify the competing goods
or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.
-nB
Re:Good idea / bad idea (Score:5, Insightful)
Copyright registration (Score:5, Informative)
Re:Copyright registration (Score:5, Informative)
Re:Copyright registration (Score:5, Informative)
I was about to correct you, but I went to the US Code to find a relevant quote, and holy crap, it looks like you're right! Title 17, Chapter 4, 411:
"Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."
The exceptions in 106A appear to be about plagiarism/misrepresentation cases, not about simple "making unlicensed copies".
I thought you registered your copyrights so you'd be eligible for statutory damages and attorneys' fees in a lawsuit. That's in the law, but it's just a reason to register copyright before any infringement begins rather than right before you sue. You learn something new every day. This must be why lawyers charge the big bucks.
Re: (Score:3, Insightful)
Re:Copyright registration (Score:5, Informative)
The proper method to deal with publication is to go ahead and press the case, and ask the judge to issue an order prohibiting both sides from discussing the case in public forums as a pre-trial motion. There is no real venue to stop publication of the legal notice short of actually taking the case to court, and there are some powerful SCOTUS decisions on the first amendment issues involved that say any such method would be prior restraint.
(please note my Sig. Any actual lawyers please feel free to correct me if I have got anything wrong here.)
Re:Copyright registration (Score:5, Informative)
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section "Copyright Registration."
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section "Copyright Registration" and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.
I've heard about a "poor man's copyright." What is it?
The practice of sending a copy of your own work to yourself is sometimes called a "poor man's copyright." There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration [ephasis added by me].
so the mailing it to yourself adds no special protection.
Re:Copyright registration (Score:4, Informative)
Thats just false. If you do NOT register a valid work, you must prove it is yours. By providing a federal datestamp, it does provide some basic claim that it was created by X date.
You still cannot sue for violating copyright if you didnt register it. The mail trick only works in preventing others from suing YOU.
Re: (Score:3, Informative)
Soooooooo, I cited an authoritative source. Where is yours proving or ev
Re: (Score:3, Informative)
See http://pe.usp [usps.gov]
Re:Copyright registration (Score:5, Informative)
Sorry, this is wrong. Registration of the copyright provides a number of advantages, which are summarized here [copyright.gov] by the Copyright Office. Among them is that, if the copyright is registered within three months of publication or prior to infringement, statutory damages and attorney's fees may be obtained. If not, only actual damages may be recovered by the copyright owner. In the case of a letter such as this, which has no commercial value, actual damages would be zero, so the failure to register the letter effectively eliminates any financial recovery. (Of course, the author of the letter is unlikely to succeed in the threatened suit since this is an absolutely classic case of Fair use.)
HAW! HAW! (Score:3, Funny)
Re: (Score:3, Interesting)
Oy vey.... (Score:3, Funny)
Please, God (or other available deity), strike these litigious dumbasses with your holy fire/hammer/lightning from the sky (as appropriate).
Re:Oy vey.... (Score:4, Funny)
You forgot "noodle".
Copyright (Score:5, Informative)
Re:Copyright (Score:5, Informative)
Note: I am not an attorney. I used http://www.publaw.com/advantage.html [publaw.com] as my source.
Funny Stuff (Score:5, Interesting)
They attempt to use Fair Housing Council of San Fernando Valley v. Roommates.com, LLC decision as a reason that Leonard is legally liable for hosting defamatory statements about an infomercial company! This is Charles Montgomery Burns quality humor.
Also, for further comedic value, I heavily recommend The DirectBuy website [directbuy.com] done entirely in flash. Which doesn't offer much except a registration form (click the upper right hand ticket). I can't find a damned thing on how their business model works unless I sign up for it. Seems to be a way to get home furnishings as discount prices. But for some reason you have to go to a show room for that. Sounds like something where the value isn't really there but they're certain they can sell you on the idea if they get a half hour of your time. Probably not a scam but pretty damned close--time share style!
Also what's interesting is how they respond to negative feedback questions [directbuycares.com]:
DirectBuy's unique business model is very different than mainstream retail operation. Our concept, combined with our continued growth over 36 years, has made DirectBuy, just like any other sizeable corporation, a target for controversy.
That being said, most of the information online is posted by individuals who have not attended an Open House, or have chosen not to become members.
We realize that DirectBuy is not for everyone, and that's why we encourage individuals who are interested in taking a calculated approach to undeniable savings to attend an Open House to learn about our unmatched selection, savings, and service. The complaints you see online from those who have actually visited DirectBuy represent a very small fraction of the hundreds of thousands of individuals each year who attend an Open House. (And to set the record straight, DirectBuy has never been involved in a class-action lawsuit.)
We're very proud of our long track record of satisfied members who have enjoyed the undeniable savings and wide array of merchandise that we offer. Our members invest upfront to avoid paying traditional retail markup and save significantly on virtually everything for in and around their homes. Members' satisfaction is our number-one priority.
But the only way to make an informed decision about whether DirectBuy membership is right for you is to attend an Open House event at a showroom near you. There, you'll learn more about the benefits of DirectBuy membership by gaining exclusive access to our showroom and getting a firsthand look at the savings, selection and services available to members from our team of knowledgeable professionals.
DirectBuy members, tell McBain about your membership experience here, too. We'd love to hear from you!
I'll bet any amount of money that wasn't written by a person with a soul. Shady legal threats from an even shadier company. What do you expect?
Re:Funny Stuff (Score:5, Interesting)
The really funny part is that their service is pretty much a scam... I've read up on them and apparently some of their policies are a little suspects, such as clause that do not allow you to return merchandise, cancel an order, or even (get this), terminate your membership! And where did this information come from? Try Consumer Reports [consumerreports.org]. DirectBuy is just another company with its head in the sand. Personally, I can't wait to see if this will end up in court.
Weasel worlds (Score:3, Informative)
The two in question here are "significantly" and "vitually". Watch the best tv series ever, Yes Minister, episode The Right to Know, for an excellent explenation of how these words can be used.
Sometimes I think all people should be forced to watch that se
Re:Funny Stuff (Score:4, Insightful)
I find this bit the most amusing:
As if, somehow, only looking for positive information about something is the best way to come to an "informed" decision. If anything, I'm looking specifically for negative information when I am trying to make an informed decision before buying something.
Open house (Score:3, Interesting)
I once was "invited" to be a broker at a certain mutual fund that I can't even remember the name of anymore
Re: (Score:3, Informative)
After purchasing this membership
Re: (Score:3, Insightful)
Also, discussing hard numbers is a great way to terrify your wife into thinking you might actually do it
hawk
One Possible Reply.. (Score:5, Funny)
7. No License... No Reading by Todd on Oct 8th, 2007 @ 8:41am
Dear Lawfirm,
Regarding your recent letter containing copyrighted content, I seem to not have an appropriate license to read your letter. I sure wish I could respond to whatever allegations you claim, but that would require that I read your letter, of which I do not have a proper license to do.
Sincerely,
Your Victim
Submission License (Score:4, Funny)
'Dozy', or what? (Score:3, Interesting)
Re: (Score:3, Informative)
And I love this ringing endorsement that appears on every single sub-page that he has linke
form letter (Score:5, Interesting)
Anyway, she received a letter from an attorney that demanded a response, but stipulated that form letters would not be accepted as legit response.
She sent a letter, but it was returned with "FORM LETTER REJECTED" stamped all over it, and the lawyer subsequently demanded more communication.
Which she ignored, because:
a) it wasn't a form letter;
b) even it was, the attorney couldn't possibly prove it;
c) even if he could prove it, you can't dictate the terms of the response as long as it's legally sufficient;
d) his stamping of the letter provided nice verification that he had received it and read it. He may as well have signed for receipt.
He kept demanding further response, and she followed up with letters that basically said "see previous".
It's the Internet, stupid (Score:3, Interesting)
Not knowing this, the folks at DirectBuy do not realize that they have utterly no recourse to anything stated about them, no matter how unsubstantiated, defamatory or libelous. Their lawyer seems to be under the impression that there is some other sort of universal shield law for everone (publishers, web service providers and posters alike) on the Internet. I suspect once one gets their head around the idea that it is the Internet it will become obvious that they can't sue an IP address and defending an IP address is pointless.
Unsubstantiated, anonymous reviews on the Internet are the norm. You can find scathing reviews of high school dates intended to utterly destroy people. You can find scathing reviews of nearly any business that some customer has had a problem with with the clear intent to force the company out of business. Normally such sites do not post anything positive, mostly because positive reviews are hard to come by. People are far more motivated when they perceive they have been wronged.
Of course, if you find such a review of your personality, your business or anything else you might as well just declare bankruptcy, move to a deserted island and kill yourself because it is highly unlikely you are going to get any sympathy on the Internet. And getting the information removed is impossible. After all, it is the Internet and nobody is responsible for anything.
The earliest example of a posted Cease and Desist (Score:4, Interesting)
http://www.ibiblio.org/elvis/manatt.html [ibiblio.org]
Also see the following articles which mention it:
http://home.earthlink.net/~barefootjim/writing/websight/websight1.html [earthlink.net]
http://www.cnn.com/SPECIALS/1997/web.whatnext/hit.miss/hit06.html [cnn.com]
Of course, posting such letters has been the standard response ever since. Interesting that it took this long for someone to try copyrighting their letter to try to prevent this...
Here's a relevant example: (Score:4, Insightful)
You have a lease contract form that was purchased at a office supply store. That contract form is copyrighted by its publisher.
You and your tenant fill it out.
Now, are you not allowed to copy the filled out, executed contract so that you and your tenant each has a copy?
If you and the tenant enter a legal dispute, are you both forbidden from copying this document (which is a derivative work, your writing on a copyrighted form) and giving the copies to your lawyers or the court?
I do not think you will ever see a judgment that declares legal correspondence to be constrained by copyright to the degree that it actually forbids a party to the correspondence from sharing that correspondence. To assert this is to abridge a party's rights, which could have fatal consequences in a lawsuit situation.
The last thing you want to do as plaintiff in a lawsuit, is give a judge a reason to believe you have been unfair to the defendant with respect to his right to mount a defense to your claims. The reason you shouldn't pull a stunt like this "copyrighted letter" is simply that you don't want to give the defendant any place to stand where he can suggest you acted in bad faith. Even in a solid position, bad faith actions can cost your case.
File an anti-SLAPP special motion to strike (Score:4, Interesting)
Such a motion is available in California and in other states as well. [wikipedia.org]
Essentially, it is a way for the small guy to fight Strategic Lawsuits Against Public Participation (big companies trying to shut the little guy up by suing him) by giving other lawyers incentive to take the cases on contingency. If this shit happens to you, contact the EFF; they send out emails to lawyers across the country who may take your defense on contingency.
Re: (Score:3, Interesting)
I know I have.
Re: (Score:3, Funny)
Re:I don't think you understand the GPL. (Score:4, Insightful)
The envelope of what the fair use doctrine allows, however, is extremely narrow. The gray area is real, but it's around a much smaller part of the range of possibilities than you're implying... it certainly does not allow for unrestricted redistribution of a nontrivial copyrighted work.
It can be argued that source code is the "expression" of the idea, and a compiled program is merely a synopsis or crux of the idea, a separate work.
There is no creative work involved in creating a compiled program from the source code, therefore it's not a separate work. Hell, even if there was, it would still be a derived work, like a cover of a song. You would have to throw out too much existing law and reverse too many precedents, as well as find a judge who is unaware of the effect that such a decision would make on the software industry, that such an argument can not possibly be carried through in anything like the current legal environment.
The GPL may not be able to exceed the rights granted under copyright law.
The GPL is not an attempt to exceed those rights, so that point is moot.
I'm sorry that I accused you of being confused. It was the kindest interpretation I could cast on your argument, but since you insist I withdraw the accusation.