Court Says You Can Copyright A Cease-And-Desist Letter
from the free-speech? dept
Back in October, we wrote about a law firm that was claiming a copyright on the cease-and-desist letters it sent out, and insisting that it was a violation to repost them. It's long been believed that cease-and-desist letters that have no new creative expression and are merely boilerplates are likely not covered by copyright. On top of that, preventing someone from copying a cease-and-desist letter or posting it on their own website seems like a pretty severe First Amendment violation. The group Public Citizen hit back against this law firm's claims, but surprisingly, a judge has now agreed that you can copyright cease-and-desist letters (thanks to Eric Goldman for emailing over the link). The news was announced in a press release by the lawyer in question, who claims this means he can now sue anytime someone posts one of his cease-and-desist letters. He also goes on to slam those who believe free speech means being able to talk about the fact that a company is bullying them:"The publication of cease and desist letters is an easy way for scofflaws to generate online 'mobosphere' support for illegal activity and, until today, many businesses have been hesitant to take action to address some of the lawlessness online because of possible retaliation and attacks."To which I would respond: "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." This is an unfortunate ruling and can only serve to create a serious chilling effect on free speech. Update: We've now posted an update, noting that the original press release appears to be an exaggeration, taking the court's decision out of context.
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Filed Under: cease and desist, copyright, streisand effect
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Re: ?
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So I guess a judge is free to base his decision on what he thinks the result of the opposite decision would be, not whether there is any law that makes something illegal, and regardless of any constitutional guarantees of free speech and reporting the truth of harrassment as practiced by law firms?
And they wonder why there is less and less respect for the law? The current state of affairs in the US "justice" system sickens me.
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hmm
Would this still violate a copyright? Or would it fall under "Fair Use"?
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Re: hmm
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Re: hmm -- no magic in typing versus scanning
1. It may be a "fair use" to reproduce the entire document, even if it is copyrighted.
2. You may be able to paraphrase -- copyright protects expression, NOT ideas, so telling the world that xyz law firm sent you a nasty letter on behalf of abc may be deemed extracting the unprotectible ideas, not the copyrightable expression
3. Telling the world that the copyright letter told you not to post it would NOT be a copyright violation, although in some circumstances it might be some other type of violation
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Oh Snap!
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Exactly
Hey, before you do something illegal, Copyright any cease and desist letter with your name in it?
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Idahoe - or I Da Hoe ???
Oh, and also - I hope these guys appeal & win.
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of course!
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"First we Kill all the Lawyers" - william shakespe
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Re:
In the sane world, educational use is supposed to fall under the fair use doctrine. However, in this insane world with f--ing greedy lawyers, who the hell knows what's right or wrong under the law anymore?
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Re:
With idiot judges like this that might actually work. "No your honor, I posted the ACTUAL bits that were emailed me. I did make a backup for my lawyer, and THAT is clearly fair use."
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are you serious
"Mobosphere" eh, if I can't mob you on the internet, then I will come to your business and burn it to the ground! More than likely you deserve it. Why should I play fair, when these lawyers and the bullsh!t companies they represent need to be delt with >:{}
DO NOT FVCK WITH THE AMERICAN PEOPLE. WE ARE TIRED OF ATTACKS ON OUR FREEDOM!
WE ARE FIGHTING BACK AND WILL NOT GO ALIVE!
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Re: are you serious
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Re: are you serious
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Re: are you serious
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Jesus is coming back December 21 2012, and boy will he be angry!
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Time to lock this guy up before he harms society any further.
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How about a live webcam pointed at my wall showing
I see a new online service...
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First Amendment analysis missing
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Re:
"Please explicitly pronounce where this news snippet takes place."
Read the linked to article. (Idaho, US)
On another note ...
Dozier said:
"The publication of cease and desist letters is an easy way for scofflaws to generate online 'mobosphere' support for illegal activity and, until today, many businesses have been hesitant to take action to address some of the lawlessness online because of possible retaliation and attacks."
I do not really follow this ..... certainly one could publish an article about the C&D online without actually displaying a copy of the C&D. And this would then generate online 'mobosphere' support. I think that this Dozier guy wants to keep all news of the C&D out of publication, kind of like super secret double probation - Oh Noes !
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Re:
He who has the power, makes the law. And when the most powerful country in the world, the US, makes law the rest of the world is expected to follow. So you should be concerned with US legal decisions because they will eventually be applied to your own country as well. Unless, that is, the Netherlands develops a military to rival that of the US and I don't see that happening anytime soon. THINK GLOBAL? The US is global.
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Do those lawyers have an email address?
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If it's copyrighted...
Can you just not ignore it, declining the offer of "copyrighted material"?
I would just send the lawyers a letter to tell them I would decline any information from them, unless it was NOT copyrighted.
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I think the judge is correct, but you do have opti
The ability to copyright a C&D stems from the ability to place a copyright on printed text, like books. You can't legally scan the latest book by your favorite author and post it online in either text or picture form. Essentially, some scumbag lawyer figured out that by going through the copyright system and treating C&Ds the same way as small books, you could prevent them from being posted online – at least in complete form. While I think that this type of legal tactic sucks, it is really is a stroke of genius when you think about it objectively, and I'm shocked that it took someone this long to figure this out.
However, two can play this game…
The interesting part is that in treating C&Ds as copyrighted works, there's also a well established process in how *you can* legally publish copyrighted materials. I'm sure the lawyers sending you the C&D will inform you that you can't publish any part of the C&D, but in fact you can – at least here in the USA thanks to something called Fair Use. This is the part of the copyright process that allows for you to incorporate parts of other people's works, like quotations, in things that you create, like blog posts without fear of the original author claiming infringement. So long as you are not republishing the entire copyrighted work, for example, the entire C&D (or a significant portion of it) on your web site, you should be able to post portions of it and still be within your legal rights.
http://en.wikipedia.org/wiki/Fair_use
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Re: I think the judge is correct, but you do have
quote:
However, two can play this game…
The interesting part is that in treating C&Ds as copyrighted works, there's also a well established process in how *you can* legally publish copyrighted materials. I'm sure the lawyers sending you the C&D will inform you that you can't publish any part of the C&D, but in fact you can – at least here in the USA thanks to something called Fair Use. This is the part of the copyright process that allows for you to incorporate parts of other people's works, like quotations, in things that you create, like blog posts without fear of the original author claiming infringement. So long as you are not republishing the entire copyrighted work, for example, the entire C&D (or a significant portion of it) on your web site, you should be able to post portions of it and still be within your legal rights.
====
So you could possibly post it online as an attempt to obtain counsel from, say the educated, or use it as an assignment to research the effects of the first amendnment? help me out here
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Re: I think the judge is correct, but you do have
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A Respected Appeals Court Ruling Says:
(Rosemont Enterprises v. Random House, inc, 366 F.2d 303 [2nd Cir., 1966]), quoted in:Benjamin Kaplan and Ralph S. Brown, Cases on Copyright, 3rd. ed., 1978, p.253
Rosemont Enterprises was a "front" for the reclusive billionaire Howard Hughes, who was trying to prevent the publication of a biography about himself. Deprivation of legitimate revenue is a central issue in the fair use defense. Given that the lucrative use of a "lawyer's letter" consists in sending it on behalf of a client, a use beyond fair use would have to be something which interferes with the legitimate expectation of revenue. For example, if one were to take a "lawyer's letter," replace the specific names and facts with "plaintiff," "defendant," etc., and publish it in a "be your own lawyer" book, that might qualify, although the judge might respond with the traditional witticism that: "he who represents himself has a fool for counsel." More plausibly, the original author of the "lawyer's letter" could claim that he had the intention to write such a book himself.
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inc got it just right
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moot point
You can always write a piece and quote from the cease-and-desist letter.
I'm quite dismayed though that these copyright laws, that were never intended to be used this way, can be so easily abused to stifle first amendment rights.
The idea of copyrighting content was so that the creator of the work could make money of the copyrighted material. The lawyer will claim that this is indeed the case, as the court case is his means of income. But it is not the cease-and-desist letter itself that is the generator of the income. Nobody is ever going to give him any money for the letter itself, although he will send his customer a fee for performing the legal duty.
I like copyright laws a great deal when used well. This is not a good use of them. It is more than high time the courts got a piece of their sanity back and stopped this nonsense.
Here's a doozy: if the cease-and-desist letter is copyrightable, suppose the lawyer subpoenas material somebody used an wanted it as evidence in a court case. And the person told him no, because the material is copyrighted and the lawyer can't get a license to use the copyrighted material. Imagine where that would end up.
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Re: moot point
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As a physician, I've seen plenty of cases where the plaintiff's have hired a whore that will testify to things that are "fact" when indeed they're not.
I like the 'moot point' comments from Jack. Maybe I'll try to copyright all of my transcriptions in a patient's medical record. ;)
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First, C&D letters are all pretty much the same. Therefore, lawyers will have to come up with more original C&D letters, as sending out a C&D letter that resembles some other firm's C&D letter too closely will expose them to a lawsuit. In fact, if you receive a C&D letter that appears to crib from some other C&D letter, you can send them a C&D letter to C&D from sending you copyright C&D letters :)
Second, there are many C&D letters that are essentially "public domain". Any portions of a "copyright" C&D letter that match a "public domain" C&D letter can be freely posted.
Third, any C&D letters that match publicly available templates (like http://tinyurl.com/onky8) can be freely posted, so long as they do not deviate enough from it to constitute original work. You can search the Chilling Effects database for keywords (http://www.chillingeffects.org/search.cgi). If all that has been added to the letter is the name of a copyright work, damages sought, etc., it isn't enough to constitute a new original work. Therefore, not copyright.
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AND copyright being used to conceal evidence of FR
Scientology has been using copyright and trade secret "law" to prevent the public being made aware of the inherent fraud of scientology.
See RTC vs Lerma
http://www.lermanet.com/xenu-in-southpark-is-real.htm
The materials I was sued for, and caused to be athenticated as the real deal, ended up entertaining kids all over the world in South Park's in the closet episode.
My judge wrote among other zingers:
"the Court is now convinced that the primary motivation of RTC in suing Lerma, DGS and The Post is to stifle criticism of Scientology in general and to harass its critics. "
And just last year, I received one of these "copyright" letters from a Scientologist lawyer... claiming to represent one of their scientology celebrities.. regarding one single error of fact on Lermanet.com Exposing the CON's 4654 pages of documents..
In RTC vs Lerma, back in 1995 there was only one argument I wanted made in my case, that was the idea of "privlege" - based upon the law of trespass - When the road is blocked and you are required to walk across someones land to continue ones journey, you cannot be charged with Trespass.. This is the common law precedent. Also called the "Do the right thing" defense...eg: I posted their secrets and endured a huge lawsuit in order to Protect the public from the fraud of scientology. However, while we have been arguing what to do about an out of control government that only serves the needs of multinational corporations instead of those individuals they represent, common law has been replaced by "statutory law"...rendering such concepts legally 'moot'.
Regards
Arnie Lerma
regards
Arnie Lerma Tel 703-241-1498
http://ocmb.lermanet.us/discussion/viewtopic.php?t=381
http://www.Lermanet.com Exposing the CON
WE COME BACK
for our friends and family
to get them out of scientology
before they end up here:
http://www.whyaretheydead.net
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Court Says You Can Copyright A Cease-And-Desist Le
This decision means absolutely nothing. Get a grip the Dozier attorney is a tool.
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I don't know...
If you gave a C&D letter to your attorney to file a response, would your attorney be violating the copyright since he doesn't have express permission to read it?
Could the company filing the C&D letter file a counter-claim saying no permission was given to your attorney? Sure, this sounds absurd, but is it any more absurd than copyrighting legal documents?
If you took the issue to court or ignored the C&D latter, would the C&D letter then be entered into the public record? Or would the court need permission from the copyright holder? Suppose the company doesn't want to give up its "copyrights" and doesn't allow the C&D letter to be entered into the court record? Can the court force the company to do so?
And shouldn't judges know that their court cases will create precedents for other cases?
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So?
You can sue someone for almost anything. This doesn't change that substantially, it just defines a particular cause of action. Fair Use isn't a right, it's a defense in a copyright infringement suit.
And really, like everything else you write down, it's copyrighted. That's not really at issue. It's well established that something only need be barely original to qualify for copyright.
Frankly, though, it would seem to be foolish to me to take a document that an obviously ligtigious person sent me and post it to the net. Now... snipping out excerpts and commenting on them... well, that's a different matter. Parodying or satirizing the letter? Also a different matter.
Posting it verbatim? Stupid, stupid, stupid. That's an action that allows a suit that they might actually have a chance in hell of prevailing on.
Come on... they already thought they had an excuse to sue you... one more reason isn't going to bring down the foundations of society.
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DOZIER INTERNET LAW, PC
301 Concourse Blvd.
West Shore 111, Suite 300
Glen Allen, VA 23059
PH: (804) 346-9770 • FX: (804) 346-0800
possible home
9319 Meadowfield Ct
Glen Allen, VA
Add to Address Book, Map (804) 262-9737
cybertriallawyer.com
http://www.mapquest.com/maps/map.adp?formtype=address&country= US&popflag=0&latitude=&longitude=&name=&phone=&level=&addtohistory=& cat=DOZIER+INTERNET+LAW%2C+PC&address=301+Concourse+Blvd.&city=&state=&zipcode=23059
who:
http://www.dozier-internet-law.info/
when:
upcoming appearances listed here
http://www.cybertriallawyer.com/
If, like me, you are a big fan of Bull Dozier's work to clarify copyright law, drop him a note or give him a call or stop by one of his talks.
In my culture, one way to say "thank you" is to mail somebody a coconut. If Mr. Dozier receives 100 coconuts, he'll know that he has a fan base.
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Re:
Interesting. Apparently according to this trivia page, in the US, you can mail a coconut without having to put it in a box. You just need to tape an address to it, along with postage.
Learn something new from TD every day!
http://anyion.blogspot.com/2008/01/extra-credit-did-you-know-you-can-mail.html
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Why is this really important?
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Why is this really important?
Yes, not being able to publish the content of a copyrighted C&D might take out the dramatic effect of posting the text of the C&D for all to see (and comment on) in a forum, but I think a picture of someone holding up the C&D can be just as dramatic – more so if you can do it in front of the law office that it originated at. I'm only a somewhat creative person, but I'm fairly sure I can find a number of ways of using a C&D that would either embarrass or anger the law firm issuing it (or the company requesting it) far more than just simply posting the text of the document online – and do it in ways the issuing law firm can do nothing about thanks to the loose definition of what is considered "art". Think about it for a moment and I'm sure you can too.
Still, getting back to the topic at hand, the real problem is not that you can't post all or part of a C&D, but that you have some company that retains a lawyer who is starting to use the legal system against you. You can choose to do whatever you want with the C&D copyright or no, but the fact remains is that you have still been issued a C&D. Setting aside issues like the fact that the claims in the C&D might be completely bogus, I would think that at this point it is more important to consider what you will do about the C&D rather than figuring the most dramatic way to inform people online that you received one.
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Re: Why is this really important?
I didn't know there was a copyright exemption for lawyers. Can you cite that?
I think a picture of someone holding up the C&D can be just as dramatic – more so if you can do it in front of the law office that it originated at.
Wouldn't that just be a photocopy? Are you saying that photocopies are exempt from copyright law?
and do it in ways the issuing law firm can do nothing about thanks to the loose definition of what is considered "art".
Is "art" exempt from copyright too? Where are you coming up with all these exemptions?
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Agreed
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How about using parody?
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Another blow struck for big business
Long live Big Business!
Down with American people!
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Where do we draw the line?
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That's not quite what the court said
My post on the issue is here.
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Fair Use
A copyright on the letter would protect the author of the letter from anyone copying his letter, to use as their own cease and desist letter, or for example to include in a book on legal forms and letters.
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Another one bits the dust...
On the other hand, what is the big deal? Can't anyone just write their own Cease-And-Disist letter? If you write your own, then you can copyright it. Dah...
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NO.
There are no creative ideas to be copyrighted in a cease and desist letter and it though it may a be a work product of a firm, for which they get paid. The fact that they get paid to generate these letters doesn't make it a marketable commodity worthy of protection under copyright laws. This is a gross and disgusting violation of all of the common understandings of copyright laws; their intent and their uses. People have to fight back.
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Re: NO.
There are no creative ideas to be copyrighted in a cease and desist letter and it though it may a be a work product of a firm, for which they get paid. The fact that they get paid to generate these letters doesn't make it a marketable commodity worthy of protection under copyright laws. This is a gross and disgusting violation of all of the common understandings of copyright laws; their intent and their uses. People have to fight back.
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There is a workaround....
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Time for action.
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Go US of A!
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Cease and desist copyright
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post the letter on wikileaks.org
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That's has to be one of the most brilliant ideas ever.
Then Rupert Murdoch's FOX says "No Political Ads" during the ... erm... "Big Game"?
After all, it would be quite fitting-- having a Blimp and all.
I believe Ghandi once said: “First they ignore you, then they laugh at you, then they fight you, then you win.”
The momentum will continue.
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Re:
LOL!
http://www.youtube.com/watch?v=EtOoQFa5ug8
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if my name is on the letter i am the copyright holder not the pig that sent it
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the press release overstates the importance of the
http://pubcit.typepad.com/clpblog/2008/01/does-copyright.html
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Copyright of Cs & D'Cs letters
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Law firm violates copy right by using defendants c
If the law firm owns the copy right to the Cease and desist letter… and uses the plaintiff intellectual property… such as trade name etc, In the laws firms work aka the “Cease-And-Desist” letter are in violation of copy right of the defendant.
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Damage amount of such a suit?
What could the S&D copyright owner sue for? Don't they have to prove they incurred some type of lost revenue (i.e. as if they could sell the copyrighted work at some price to someone else) in order to set a damage amount?
Mening, if the lawyer sent the guy the copyrighted S&D letter for free, doesn't that set the damage amount to free.
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Your headline is a bit misleading
"...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."
Its not over by a long shot
http://www.groklaw.net/article.php?story=2006062204552163
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Legal-fu
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He can dish it out ...
http://johndozierjr.typepad.com/dozierinternetlaw/
Someone who claims the nickname "Bull" (maybe that is just his first name ;-) ) should be a bit thicker skinned than that. Personally, I think the lawyers in his office who were involved in this case should all be disbarred for it (and the Judge should resign).
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Spam and spy ware
Interestingly his press release http://www.eworldwire.com/pressreleases/13823
gives his email address ( jwd@cybertriallawyer.com ) while his web page and blog do not.
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Court Says You Can Copyright A Cease-And-Desist Le
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http://tinyurl.com/3xh4jo
lol
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Hu?
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Where does legal counsel fall?
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That's the world for you.
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Where is my money? I ain't cheap legal counsel.
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A question
Is it not necessary to prove that "Item A" (whatever it is) is unique enough before it can be copyrighted? Doesn't it mean that each time the lawyers make a C&D letter (even if they just changed the names on it) it has to be copyrighted again? And doesn't the template has to be proven to be different from public works? And from all the other copyrighted C&Ds?
I mean, I can't just write down a wiki article and copyright it, right? Or maybe I can! *grins evilly!*
Any thoughts on that?
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The Decision Does NOT Say You Cannot Post The C&D
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Re: The Decision Does NOT Say You Cannot Post The
An important distinction indeed ...
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Just caption it with "BREAKING NEWS" instead of "Copy of cease and desist letter in an attempt to silence anti-Scientology post"
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What about "Officer of the Court"?
As I understand it, by definition, (http://www.cendi.gov/publications/04-8copyright.html#311) the writing of someone acting as an officer of the court is working in association with the U.S. Government, which in turn is one of the specific exceptions to copyright law. There are a number of exception to this, but I find it surprising that anyone would consider a Cease and Desist letter to be among them.
Jonnan
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Comments by 'd2' in this lawsuit
First off, Dozier isn't involved in our case. I'd never heard of him before last Friday. His article talks about two cases and then has some unfortunate wording. Read it two or three times -- it has a 2nd meaning where he's not taking credit for our case.
Many readers here have done a positively brilliant job of deconstructing the case as I see it: it was just a decision on our Motion to Quash, nothing about copyrightability was decided by the court, and in our view, Melaleuca lost when they were denied 'Tom Paine's identity. Merchantability or copyright of a takedown demand is a question that remains unanswered. Fair use? I think we'd win 3 ways out of the 4 that are mentioned in Fair Use overviews. IANAL, but I've heard lawyers say the same thing.
Judge Mikel Williams isn't an idiot or a tool. He was, in fact, quick to hammer on the very issues that led to my challenging the subpoena.
Beyond that, please pass mention of this case along; I think Dozier's article is so wrong-headed it makes my argument that takedowns and C&D's shouldn't be copyrightable -- the public's right to hear and decide for themselves outweighs business expediency. Also, the DMCA's prelitigation subpoena power needs reined in.
Rather than struggling to belatedly reply to all the good comments on here and slashdot, I finally wrote a bit of a FAQ on our site: Melaleuca - 43sb Lawsuit FAQ
Now if only I had been smart enough to have some fundraiser scheme in place to try to recoup legal costs for this boondoggle. I've got my own 21st-century corollary to Vezzini's classic blunder remark about land wars in Asia: Never get caught up in a lawsuit with a Billionaire.
Thanks again for your interest and comments. After nearly a year of living with this, I enjoy hearing other netizens react like I did.
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legal claims must be a matter of public record
1. non-compliance
2. mass media attention
3. higher court ruling
4. judge disbarment
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Seems TD is wrong.
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Re: Seems TD is wrong.
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Is this judge stupid or corrupt?
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http://johndozierjr.typepad.com/dozierinternetlaw/
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A friend of mine got one of those letters: Gerald Duffy to Gailon Joy: "Cease & Desist!" What was interesting about it is that it claimed to be protected by common law copyright, which was abolished on the federal level in 1834 and on the state level by 1978.
Now since that letter claimed that we were defaming by claiming that Danny Shelton was steamrolling over those concerned about the child molestation allegations leveled against his brother, via intimidation by attorneys no less, and since this letter was more evidence of the same, it was promptly published.
Not sure why people can think they can get away with this kind of thing, suing and all. It's a no-win situation. Much better to face the complaints like men and deal with the matter, apologizing if need be.
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Common law copyright?
A friend of mine got one of those letters: Gerald Duffy to Gailon Joy: "Cease & Desist!" What was interesting about it is that it claimed to be protected by common law copyright, which was abolished on the federal level in 1834 and on the state level by 1978.
Now since that letter claimed that we were defaming by claiming that Danny Shelton was steamrolling over those concerned about the child molestation allegations leveled against his brother, via intimidation by attorneys no less, and since this letter was more evidence of the same, it was promptly published.
Not sure why people can think they can get away with this kind of thing, suing and all. It's a no-win situation. Much better to face the complaints like men and deal with the matter, apologizing if need be.
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someone is sending me nasty e-mails ,this the third or fourth time,what can i do about it and how can i get them to stop. how can i find out who is sending them to me and where they are comming from???????.
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medical
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