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)
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: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!
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: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: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, 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.
Politicians (Score:5, Insightful)
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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
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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.
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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.
Re:With rulings like this... (Score:5, Informative)
Re:With rulings like this... (Score:5, Informative)
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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 th
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Re:not as important as summary makes out (Score:5, Informative)
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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
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How can damages be assessed? (Score:2)
I write a cease-and-desist letter, you make, and distribute, illegal copies of that letter. But you have not cost me any sales, so what are my damages?
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By demonstrating the proper and logical consequences of the copyright concepts universally demanded by a wide range of industires from legal to entertainment we get a clear view into their irrational and bankrupt f
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.
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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.
So sue me (Score:2)
Just got a comment by a party known as "lucifron" saying: Any modification to "a named party's statement" before publishing it is "a whole lot worse than copyright violation" and something you "certainly _don't_ want to" do.
But I don't see anything wrong with quoting excerpts from a copyrighted text.
-SNPP
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)
Re:Turn the tables? (Score:5, Interesting)
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.
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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.
We are talking about a law firm here; they wouldn't show the real letter, they'd sue you for libel.
Re:Turn the tables? (Score:4, Funny)
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As for patenting a legal argument, I bet you could -- if it met the requirements for patentability, which would be tricky -- but _then_ you'd see an
More to the point... (Score:5, Funny)
Re:More to the point... (Score:5, Funny)
IAAL and that isn't the decision (Score:2)
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.
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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.
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"The recipient of this takedown notice is hereby ordered to take down this very take-down notice from your Web site immediately."
Fixed it. Now it's good to go.
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.
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Raising bad manners to an art form perhaps?...
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How isn't cooking? (recipes are not copyrightable - for now).
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.
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').
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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?
Sounds like the argument used to suggest that software has no creative aspect.. or blueprints.. or manuals.. or recipes.
All of which (expect the last one, for some strange reason) are protected by copyright.
A Great Idea: Singing C & D letters (Score:2)
Now if I could just find that harmonica.
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Don't worry, he can't. US government works are uncopyrightable. Now, if only this were true for all other governmental agencies and the like.
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?
Choice of wording, basically. It's not as though there is only one possible way to write a C&D. The threshold for creativit
Justice for the rich (Score:2)
It's not a huge deal - unless the innocent victim doesn't have the money to see the long process through. And even when the victim has plenty of money (e.g. SCO vs. IBM), it is a huge waste of tim
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.
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Oblig. American Psycho (Score:2)
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You can copyright anything (Score:2)
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...
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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.
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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.
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What are they, the EFF?
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.
Every lawyers main goal should
Court did not rule on copyright issue (Score:5, Informative)
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There - just saved your ass from a libel suit!
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All the court said is that the prima facie evidence exists to let the subpoena stand for the simple reason that the slimy law firm registered the copyright of the letter. However, the court acknowledges that the defendant has "valid arguments" on their claim that the letter cannot be copyrighted. The court simply says that the analysis of those claims is beyond the scope of determining to quash the subpoena, and the prima facie case is sufficient to let the subpoena stand. As I see it, the defendant will now have to go to court and challenge the copyright directly instead of the validity of the subpoena. Of course, this is /., and I am not a lawyer.
You pretty much took the words right out of my mouth... except for that last part.
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: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.
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I have a child, today, and a movie is released, today. She will likely be dead before the copyright expires. How is that limited?
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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.
As other posters have said, copyright exists to promote the progress of science. It does not exist to give credit to the author, nor to let the author benefit from his work; those are means, not ends. I suggest you remember that.
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
More money for the legal parasites (Score:2)
What this does is to mean that the guy being sued has either to give in or employ a lawyer at their usual rip off rates.
I have (unfortunately) had enough experience with these parasites, in my own case and helping other dads try to
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In the UK you are allowed to keep unsolicited gifts and do as you wish with them. As before you received the letter it is likely that you had no contact with the law firm this may be an avenue of attack.
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Good news (Score:2)
Perhaps it is only infringement to use the copyrighted C&D letters for their intended purpose, without a license
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It appears that the question I brought up above is exactly what this ruling is about. Apparently, the courts have decided to get between victims and their (random stranger) lawyers. Sickening. Perhaps this will get overturned.
If you can afford a real lawyer, it is probably better to consult one of those. But if you have no money, consulting random strangers might be your only option. It is a sad state of affairs which has just gotten worse.
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The Pirate Bay legal page (Score:2, Interesting)
So now The Pirate Bay will be sued for copyright infringement of cease and desist notices? After all, they publish all such letters (with mocking replies) on their web site legal page.
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So publish every CDL (Score:2)
Why not... (Score:3, Interesting)
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Dozier, eh (Score:2)
Of course he wasn't: it was in Idaho that this happened. The state that has more cows than people. I am not about to gasp anytime soon.
Meanwhile, the judge obviously has no idea whatsoever what copyright means or was devised for. I know you're in Idaho, but have an idea out there, moron. The intellectual property of the lawyer (assuming he has any) is not protected by this law. It is not in any way relevant t
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.
Okay, so recipients need to get creative.... (Score:2)
Huh??? (Score:2)
Check the Judges (Score:2)
Judges are generally good deciders. But that lets the rest get a fr
Retarded lawyers, retarded judges, and . . . (Score:2)
The writer of a letter does not "copyright a letter." The copyright is automatic, if it qualifies, which it clearly would if it's more than a few sentences long. This has been the law, almost everywhere in the world, for decades.
Copyright does not cover all possible uses of the protected material. Fair use includes things like reporting news, and educational purposes.
And in the end, this is utterly, completely, totally meaningless anyway. If you get a C&D letter, there are
Nice, short summary of what was really decided (Score:5, Informative)
Re:yes (Score:5, Funny)
Don't worry, it Conflicts with my patent (Score:5, Funny)
Overrule-able? (Score:2, Insightful)
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
Isn't this actually fraud? (Score:3, Interesting)
As I understand it,
A) A lawyer, issuing a Cease and Desist letter, is operating as an Officer of the court;
I don't know that I'm right on this
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