Don't Post This Cease-and-Desist Letter, Or Else

from the let's-test-that-theory dept

Mon, Oct 8th 2007 7:03am — Mike Masnick

Greg Beck writes "In an apparent attempt to avoid the Streisand Effect, lawyers sending threat letters sometimes claim that the recipient would violate the firm's copyright by posting it online. This post is about Public Citizen's response to one dumb threat letter and its decision to post the letter online despite the copyright claim." It's funny how popular it has become for lawyers to claim it's illegal to post or even show anyone their cease-and-desist letters. Remember: just because a lawyer says so, it doesn't mean it's true. You can see Public Citizen's response to the letter (pdf), which lays out a variety of reasons why the cease and desist is ridiculous (it's yet another attempt to force criticism offline) and ends with a fantastic response to the claim that the original C&D is covered by copyright and cannot be posted online without additional charges: "By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the internet." Somehow, I doubt the opposing lawyer will test out this theory.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cease and desist, copyright, streisand effect

47 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

RandomThoughts, 8 Oct 2007 @ 7:29am

I love email wording that says if I have received the email in error and I make it public, then plagues will strike my children and the Cubs will lose in the playoffs (OK, that does happen)

Maybe they should make sure they send it to the right people?
[ link to this | view in chronology ]
Mike F.M, 8 Oct 2007 @ 7:50am

Can you turn on the lawyers?
Is it possible to turn on lawyers that make false claims like this?

I mean, the general public doesn't know enough about this subject to know if this claim - or others like it - are true or not. If it turns out that they are false, what can be done to the sneeky lawyer who tried to trick unaware people?

It's the same as getting, for instance, videos pulled from Youtube when they are obviously fair use. You see plenty of these cases, but does any one really fight back and get the people perpetrating their ideals as facts correctly punished?
[ link to this | view in chronology ]
- Rev Egg Plant, 8 Oct 2007 @ 10:46am
  
  Re: Can you turn on the lawyers?
  who says it's lawyers making false claims? Who says the letter writer is even a lawyer? I can easily fake any corporate letterhead I need to and write anything I want on it, not that I make it a regular practice or anything. Or kill me.
  [ link to this | view in chronology ]
- Eric the Grey, 8 Oct 2007 @ 11:38am
  
  Re: Can you turn on the lawyers?
  I still say that certified Lawyers who pull shit like this need to be disbarred and prevented from ever working as one again.
  
  EtG
  [ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2007 @ 7:53am

Disbar them...
I say we fix this problem by placing a vaguely worded law on the books that allows for disbarment for misrepresentation of the law. If you try to imply legal rights, where you have none, then you can't practice law anymore.
[ link to this | view in chronology ]
- Richard Ahlquist (profile), 8 Oct 2007 @ 8:09am
  
  Re: Disbar them...
  Only problem with that AC is you have to take into account intent. If they intend to misrepresent its one thing if they are just morons....
  
  So already you have to enter into more mucky muck.
  [ link to this | view in chronology ]
  - Avitarx, 8 Oct 2007 @ 8:46am
    
    Re: Re: Disbar them...
    But if they are morons the best interest is served by their disbarment.
    [ link to this | view in chronology ]
  - ehrichweiss, 8 Oct 2007 @ 10:18am
    
    Re: Re: Disbar them...
    Honestly I think that if an attorney is either malicious, greedy or a moron and they misrepresented the law, they should be disbarred. Ignorance of the law isn't an excuse for average everyday citizens so I think we should hold the people who are supposed to be SIGNIFICANTLY more knowledgeable of the law even more accountable than we should.
    [ link to this | view in chronology ]
  - James Miller, 8 Oct 2007 @ 1:39pm
    
    Re: Re: Disbar them...
    None of this really matters anyway because if a lawyer's lips are moving he's lying. Law is the stomping ground of sanctioned criminals and cheats and is no place for decent human beings.
    [ link to this | view in chronology ]
  - Anon, 19 Oct 2007 @ 1:20am
    
    Re: Re: Disbar them...
    If they are morons then they shouldn't be lawyers. Problem solved.
    [ link to this | view in chronology ]
- Bob (profile), 8 Oct 2007 @ 10:36am
  
  Re: Disbar them...
  You forget. Lawyers write the laws.
  [ link to this | view in chronology ]
- John Hamilton, 8 Oct 2007 @ 4:21pm
  
  Re: Disbar them...
  Actually, I think dismembering those lawyers would send a much more effective message, don't you?
  [ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2007 @ 8:03am

If you do manage to implement a law claiming that a lawyer will be disbarred for misrepresentation you'll probably see just how fast the courts can act.
[ link to this | view in chronology ]
- Anonymous Coward, 8 Oct 2007 @ 9:52pm
  
  Re:
  or how slow, depending on the deepness of the pockets of the defendant
  [ link to this | view in chronology ]
Mike F.M, 8 Oct 2007 @ 8:05am

RE: Disbar them...
The problem with this is that some of the laws are so vague that it is impossible to specify exactly which way the law might go with certain situations.

It is impossible to write a law that will apply 100% to 100% of cases. There are some that are exact examples of the law - (the majority, one would hope) - but the rest require a decision on the topic.

Enter a judge / jury.
[ link to this | view in chronology ]
Todd, 8 Oct 2007 @ 8:41am

No License... No Reading
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
[ link to this | view in chronology ]
James, 8 Oct 2007 @ 9:08am

copyright
In order for the letter to truely be copyrighted do they not have to register it with http://www.copyright.gov with out this, IMO, they can not sue for more than the actual damages. lol
[ link to this | view in chronology ]
- Eric the Grey, 8 Oct 2007 @ 11:47am
  
  Re: copyright
  Perhaps you should actually read the site in question? Under the first link, Copyright Basics, there is some interesting information, such as:
  
  Who Can Claim Copyright?
  
  Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
  
  emphasis mine
  
  However, given that the entire basis of the letter is fiction, perhaps it can be copyrighted...
  
  EtG
  [ link to this | view in chronology ]
  - da, 8 Oct 2007 @ 3:14pm
    
    Re: Re: copyright
    Also following section at http://www.copyright.gov/circs/circ1.html.
    
    How to Secure a Copyright
    Copyright Secured Automatically upon Creation
    
    The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”
    
    Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
    [ link to this | view in chronology ]
Beefcake, 8 Oct 2007 @ 9:20am

Outrage is relative to image
If a car mechanic was feeding their customers a load of crap, there would be no shortage of people arguing, threatening, and shouting at them despite having little or no knowledge of the workings of their car and frankly finding the mechanics involved to be mysterious and confusing.

Yet when a lawyer sends a letter, many of those same people comply with the instructions because they have little or no knowledge of the workings of the law and frankly find the mechanics involved to be mysterious and confusing.

It's amazing how easily impressed we are by the self-conjured image of a person in a suit, as opposed to when presented with the reality of a person in coveralls.
[ link to this | view in chronology ]
- ConceptJunkie (profile), 8 Oct 2007 @ 11:32am
  
  Re: Outrage is relative to image
  It's real simple. The guy in the suit can ruin your life. The guy in the coveralls can only not fix your car.
  [ link to this | view in chronology ]
  - mc, 8 Oct 2007 @ 2:05pm
    
    Re: Re: Outrage is relative to image
    Boy, are you a slow leak. The guy in the suit can cost you money, true. If that is the only thing you value in your life, you lose anyway. The guy in the coveralls can kill you, or cripple you (but then you would get your own suit), and/or anyone who rides in your car. But, since you have such a low regard for anyone not in a suit, bring your car to me - I'll fix you right up, and it won't cost you much (not Very much, anyway)...
    [ link to this | view in chronology ]
- Anonymous Coward, 8 Oct 2007 @ 5:28pm
  
  Re: Outrage is relative to image
  Of course. The car mechanic won't own their house if they complain.
  [ link to this | view in chronology ]
Sean, 8 Oct 2007 @ 9:49am

For all those calling for retribution...
Two things are required to counter nonsense like this; intelligence, and the free and open exchange of ideas. The power of this scam is that it takes advantage of the expected ignorance of its target. The hope is that this meme sends Donald Morris and his ilk back to ambulance chasing.
[ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2007 @ 9:51am

making this email public or ridiculing it will res
http://static.thepiratebay.org/enya_response.txt Heres a fun legal threat sent to piratebay
[ link to this | view in chronology ]
BlueBearr, 8 Oct 2007 @ 10:11am

Copyrighted
How about this:

Dear Mr. Morris, Esq.:

I have read your letter dated September 21, 2007. Unfortunately, according to your letter, I do not have the rights to act upon the contents of your letter.

You state in your letter that I am "not authorized to republish this in any manner." Your letter also says across the top "FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY."

Because of the tone of these warnings, I feel that it is inappropriate for me to assume any rights that are not specifically granted to me in your letter. Unfortunately, you do not detail your definition of any of the above restricting terms, and how they relate to the activities that I consider relevant to acting on the contents of your letter. Am I permitted to "review" the contents of the letter? Can I transmit the letter to another location, either physically or in electronic format, for the purposes of more expeditiously reviewing your request? How am I permitted to share the contents with any other individuals (say, any employees, or any site visitors that you claim have posted defamatory content)? May I use the contents to direct activities regarding the content that you regard as defamatory? This are some but by no means all of the usages that I need to have defined in order to be able to consider your request.

Until and unless you fully describe and define any and all activities and usages that have been granted to me in use of your copyrighted material, I cannot act on any information that is contained in this copyrighted document. If in any subsequent communications you fail to fully define all usage rights that I consider relevant to considering your request, I will again withhold action until this oversight is corrected.

Accordingly, I am returning your copyrighted material with this letter, as I cannot be held accountable for its contents being misdirected or misused.

Regards,
[ link to this | view in chronology ]
crossbonez, 8 Oct 2007 @ 10:11am

Ive arrived from the land of /. and wonder...
If the copyright claim on the letter, and the basis of the C & D claims written about in the letter, are both basically 'scams' - does that mean they will be coming out in DirectBuy's upcoming spring catalog? :)
[ link to this | view in chronology ]
SPR, 8 Oct 2007 @ 10:26am

Abuse of the law
I agree that we should have laws penalizing lawyers for lying about what a law says and/or requires. Who will pass such laws? Our Senators and Representatives, a vast majority of which are lawyers? This is a good time to push for laws prohibiting lawyers from holding public office.
[ link to this | view in chronology ]
- wmaclough, 8 Oct 2007 @ 9:29pm
  
  Re: Abuse of the law
  At least in CA, the law already does. If an attorney intentionally misrepresents the law or facts (not merely arguing for a change in law, but actively makes a false statement on the state of the law) he can be subject to censure by the State Bar. Likewise, an intentional misrepresentation of fact can be grounds for disciplinary action.
  [ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2007 @ 10:32am

I don't know if all laws are written vaguely or not. Take for instance the UCMJ. Its pretty straight forward to read and understand what its talking about, other than article 134, but that is there really to railroad someone out, or as a tack on when you've really upset the PTB. The UCMJ for the most part, can be read and understood by anyone who looks at it. Its ment to be simple and straight to the point. The biggest difference of course, is that its military law, so its streamlined and without as much glut.
[ link to this | view in chronology ]
kevink, 8 Oct 2007 @ 11:02am

The reply letter is even better
if you imagine it being read by Samuel L. Jackson (as Jules from Pulp Fiction.)

Or maybe as Ian McShane (as Al Swearengen from Deadwood.)

The blue language just makes it, you know, work.
[ link to this | view in chronology ]
Scoundrel, 8 Oct 2007 @ 11:13am

Gotta love the lawyer website!
Anyone notice the website listed on the C&D letter? Gotta love it. It has it's own YouTube Infomercial on the main page. LMFAO!
[ link to this | view in chronology ]
Archangel Michael, 8 Oct 2007 @ 11:28am

Opened up
"FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY."

This is a LICENSING statement. It licenses the copyrighted work for the purposes of "Negotiation and Settlement". Which in this case enables me to publish the work as a means to publicize their C & D letter and criticism of it, a common tactic in Negotiations.

I have used the copyright within the guidelines of their copyright license.
[ link to this | view in chronology ]
BigEd, 8 Oct 2007 @ 12:14pm

Yea,.....Right....
What comes in my mailbox is my property to do with as I please. Especially since I didn't order it or ask for it.

Is there a case here for mail fraud???
[ link to this | view in chronology ]
crystal_tech, 8 Oct 2007 @ 12:30pm

TPB
dude just take a look at the pirate bays site they posted tons of them quite funny if ya think of it
[ link to this | view in chronology ]
Frog Face McQuaid, 8 Oct 2007 @ 12:41pm

I find it interesting just how much we are willing to give up...
I don't actually own my car. Well, ok, I do own it, but I cannot use it (on public roads) unless it is legally licenser, registered, insured, and I am licensed...
I don't own my iPhone, well, same thing...I do own it, but I just cannot use it unless I let Apple and AT&T dictate to me how, when and where.
SO what next?
The big flaw in thinking that there is some protective copyright on a C&D letter is that once it is filed in the courts, it becomes PUBLIC DOMAIN...so much for Copyright.
[ link to this | view in chronology ]
Lefty, 8 Oct 2007 @ 2:05pm

There is one thing, however:
I work for an online Electronics Retailer. This is an awesome example of how those with resources often bully those without. But remember: If you go from an open-ended forum to running a site like Directbuysucks.com (just an example, I have no knowledge or intention of looking up to see if such a site actually exists) and you put banner ads, you've crossed a line into the for-profit. Then they can come after you. Just food for thought.
[ link to this | view in chronology ]
Geneva Heaton, 8 Oct 2007 @ 7:23pm

Torrent for those Files
To further mitigate the Streisand Effect, here is a torrent link to those files, should they mysteriously fall off the Internet: http://recordsquest.org/?q=node/109
[ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2007 @ 7:50pm

Bwaahahahahaha. PWNT!
[ link to this | view in chronology ]
Craig Combs, 8 Oct 2007 @ 8:10pm

Solution: anti-SLAPP motion to strike
If some lawyer attempted to go after my client with this BS they would get an anti-SLAPP special motion to strike on their desk. My client would get his/her/its attorney's fees paid.
Such a motion is available in California and in other states as well.

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.
[ link to this | view in chronology ]
Randy, 8 Oct 2007 @ 9:12pm

Missing NDA
Too bad the lawyer didn't first send a NDA to get signed and returned. No signed Non Disclosure Agreement = no obligation to not share the enclosed unsolicited letter.
[ link to this | view in chronology ]
Just a thought..., 8 Oct 2007 @ 11:31pm

Just a thought...
Well, if that's the law firm's belief, why not tell them that we copyrighted the letter 'e', and that any further communications from them should do withouth our copyright or else pay royalties or face a copyright infringment suit...
[ link to this | view in chronology ]
John L. Lee, 9 Oct 2007 @ 4:38am

Cease & Desist
I find a big ass .45 automatic works well for this purpose!
[ link to this | view in chronology ]
Mike, 9 Oct 2007 @ 4:56am

Just another thought
If you were to auction this letter on E-bay would you have to split the profits with the letter writer?
[ link to this | view in chronology ]
peter, 10 Oct 2007 @ 12:47am

they do have copy right
"the copyright notice" is the only copyrighted piece to text in the email
[ link to this | view in chronology ]
John, 18 Oct 2007 @ 2:47pm

Is this extortion
there is a monetary demand in the law firm's letter, directing payment for all of DirectBuy's legal expenses. Given the legally pathetic threat, made by a person of the Bar and claiming expertise in this area, does this not constitute extortion and possibly, given the recent decision re Microsoft and BestBuy, a violation of RICO - racketeering??
[ link to this | view in chronology ]
Rand, 21 Oct 2007 @ 5:35pm

Using the Legal Process
I find it sad the so many people will provide a knee-jerk reaction. Yes, as an IP attorney, I have to agree the copyright claim is overboard, although technically the letter would be protected. I have little doubt that a Court would find posting of the threat a fair use.

The better way to get back at the attorneys is to use their own forum against them. Since they are asserting that posting the letter would constitute an infringement, file a declaratory judgment against the firm in your local federal court seeking a declaration that posting the letter would be a fair use. The last thing the attorney wants to be doing is hiring a law firm in your home town to defend a lawsuit that makes him look stupid.

Additionally, add in a declaratory judgment claim that your use of the underlying action was a fair use - or any other defense. Not only is the litigation conducted on your home court, it also lets the judge know right off the bat that the attorney on the other side is a moron who likes to stretch his case a bit.
[ link to this | view in chronology ]