Court Says You Can Copyright a Cease-And-Desist Letter

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

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.

Re:not as important as summary makes out

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.

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

Can I like, not open the cease-and-desist letter and tell the judge that since I didn't open the letter so that I do not violate copyright? Reason being, I too write such letters, and since I didn't opened the letter, I have the right not to "cease-and-desist"? Since I can never know what is inside the letter, and I really do not want to know, so that my creativity and originality while writing such letter is not affected (corrupted?)? .. I'm exempted, am I?

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

This is also my thinking.

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

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

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.

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

Of course, the vast majority of them are lawyers.

Re:With rulings like this...

First off, let me state that I am an inactive (retired) lawyer so that nothing I say here is legal advice. However, I really enjoy researching a topic like this, so I'll share a few little bits of information I discovered from reading the U.S. Code and a few other publications from the Copyright Office (www.copyright.gov).

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...

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.

Incorrect. Notice has not been required since March 1, 1989, the effective date of the Berne Convention Implementation Act of 1988. This is shown in 17 USC 401(a) where the word "shall" was changed to "may":

17 U.S.C. 401(a) General Provisions.-- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

There is still a notice requirement, however, for some works created or published before 1989.

Re:With rulings like this...

Thanks to all of you who pointed out my error in failing to take the Berne Convention changes in my previous post. Having read the amended sections, it's now clear to me that the failure to give notice in the correct form does not deprive the author of "copyright protection." However, I didn't find anything that negates the rule set forth in Ch. 17, sec. 412, denying statutory damages and attorneys fees to a copyright holder who has not complied with the registration requirements.

Re:not as important as summary makes out

That's exactly what is wrong with our legal system. Your arguments make perfect sense, the premises are valid, and yet the conclusion is unfair. If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself. That's just common sense. There is sometimes a tension between being a nation of laws and knowing when the law is insufficient to mete out justice. Lawyers and judges never understand that there needs to be some slop in the system and if the system won't provide it then people MUST create it by just working outside the system.

Turn the tables?

So does this sword cut two ways?

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?

It's only copyright if it's copied, not if there are coincidental similarities between two works. If you can prove that the cease and desist letters were copied off one of your 40, then I guess this lays the precedent. Anyway, even if I'm mistaken, the sword would cut the first way back at you, because if the field of cease and desist letters is as narrow as you think, chances are that many of your 40 cease and desist letters would be infringing on other previous letters.

More to the point...

... can you copyright a gallon of petrol through the law firm's letterbox?

Re:More to the point...

Mod parent +1 Inciteful.

From the judgement...

Everyone should familiarize themselves with the judgement [dozier-int...law-pc.com]. It's pretty amazing. Here are some choice bits... oh, assuming the judge didn't copyright it. Fair use should apply.

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...

From the U.S. Constitution:

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.

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.

Does this also mean

If I send a nasty email to someone and declare it copyrighted, they can't distribute it?

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

Here's the C&D that was decisioned. They haven't managed to take this down. Then again, it's now part of the public record.

http://www.citizen.org/documents/directbuycd.pdf [citizen.org]

A Review

As an aficionado and longtime aesthetic critic of the cease-and-desist oeuvre, I have only a few moments to offer my review of this stirring and emotionally riveting form of creative mastery.

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.

Court did not rule on copyright issue

From the ruling [dozier-int...law-pc.com]:

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

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.

Nice, short summary of what was really decided

Here [internetlibrary.com] is a nice, short summary of what was really decided by the judge in this case, which has almost nothing to do with what the linked article said was decided.

Re:yes

You will both be hearing from my legal team, as I have in fact already copyrighted both first and second posts. Oddly enough, we skipped 3 and went straight to 5.

Don't worry, it Conflicts with my patent

Don't worry, I have a patent on "method for the prevention of public disclosure of cease and desist letters" in which I describe the use of copyright notices on said letters. I am issuing a cease and desist letter to this lawyer, who is infringing on my patent. The only reason you have not heard of this latest development is that my cease and desist order to him was copyrighted.

How does this promote the "useful arts"?

It is clear this judge is failing to consider the framers intent in giving the Federal Government the power (one of its enumerated powers) to pass copyright and patent law:

"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