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

from the free-speech? dept

Fri, Jan 25th 2008 7:14pm — Mike Masnick

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

112 Comments

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Is that America?, 25 Jan 2008 @ 7:43pm

?
it makes me sick! Do you think maybe the judge just happened to be a retired attorney! What the hell is wrong with our country when total B.S. like this is not only allowed but encouraged by our totally broken legal system.
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Cynic, 25 Jan 2008 @ 8:07pm

Silly me, when I was on a jury I was told that I was supposed to not consider the results of my decision, but only which decision was most appropriate given the laws and the facts of the case as presented. I think...hmmmm...it was a judge that told us that.

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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Shaun, 25 Jan 2008 @ 8:10pm

hmm
What if you didn't scan it, but rather, typed it yourself (not so much verbatim)?

Would this still violate a copyright? Or would it fall under "Fair Use"?
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TriZz, 25 Jan 2008 @ 8:15pm

Oh Snap!
Funk dat.
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Jacob, 25 Jan 2008 @ 8:16pm

Exactly
I was going to say the same thing as Shaun. If you type it, you're not copying it. Leave out the signature and your good it would seem.

Hey, before you do something illegal, Copyright any cease and desist letter with your name in it?
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STJ, 25 Jan 2008 @ 8:20pm

How about a text file containing a bunch of words that happen to be in their letter
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Alfred e. Neuman, 25 Jan 2008 @ 8:21pm

Idahoe - or I Da Hoe ???
If the C&D recipient were to file counter charges, like harassment or something, then the C&D letter (exhibit A) would become a matter of public record. Then I could request a copy via the freedom of information act.

Oh, and also - I hope these guys appeal & win.
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paul, 25 Jan 2008 @ 8:34pm

of course!
if you're that much of a jerk, that a letter you send creates a "mobosphere" of people who instantly want to attack you, then yes, you deserve that attack and you're just going to have to come up with better ways of defending against it.
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Nani Showalter Fitz, 25 Jan 2008 @ 9:01pm

"First we Kill all the Lawyers" - william shakespe
This is why the public hates lawyers. They deserve to be hated. Along with the judges that support this nonsense. The law is a public record, not some secret. If it is secret, then people cannot follow it. There must be transparency. At the very least, publication of the letter should be permitted under fair use. Certainly public interest in this matter constitutes fair use. Both the judge and the attorney behind this copyright case are maggots.
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inc, 25 Jan 2008 @ 10:16pm

what if you posted the actual letter would this be a copyright issue? I mean nothing was duplicated.. or what if it was paraphrased with a works cited as in a book report hehe
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Jenna, 25 Jan 2008 @ 10:29pm

Re:
what if you posted the actual letter would this be a copyright issue? I mean nothing was duplicated.. or what if it was paraphrased with a works cited as in a book report hehe

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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bob, 25 Jan 2008 @ 10:51pm

are you serious
"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."

"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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Anonymous Coward, 26 Jan 2008 @ 12:21am

Doesn't the freedom of information act apply?
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Anonymous Coward, 26 Jan 2008 @ 12:32am

Never thought I'd see the day when a Judge would see a company's Branding and PR budget have more value than freedom of speech.

Jesus is coming back December 21 2012, and boy will he be angry!
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Danny, 26 Jan 2008 @ 3:26am

I wonder what kind of "token of appreciation" the judge got after making that ruling. New car? Stock options? A "donation"?
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Thomas, 26 Jan 2008 @ 3:49am

There is no section of society with less respect for the law than lawyers. Their entire workload is finding ways around the law for financial gain.

Time to lock this guy up before he harms society any further.
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Michael, 26 Jan 2008 @ 4:25am

How about a live webcam pointed at my wall showing
Surely I'm allowed to post the letter to my wall. Surely I'm allowed to point a webcam at my wall.

I see a new online service...
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edith, 26 Jan 2008 @ 4:43am

First Amendment analysis missing
Professor Dan Solove (GWU Law School) has recently argued that First Amendment analysis is necessary in these types of cases:
[Plaintiffs] shouldn't be given an easy time when seeking people's identities via subpoenas. [They] should be forced to make [their] case and meet the summary judgment standard. Maybe [plaintiffs] will succeed in doing this in most cases, but [they] should at least be challenged to demonstrate [their] case.
In this case, the magistrate judge doesn't seem to have balanced the rights of the plaintiff versus the anonymous poster according to a summary judgement standard. Instead, he simply looked for a prima facie case of infringement:
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.
I'm leaning more towards Dan Solove's view.
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ChurchHatesTucker, 26 Jan 2008 @ 5:40am

Re:
"what if you posted the actual letter would this be a copyright issue? I mean nothing was duplicated.. or what if it was paraphrased with a works cited as in a book report hehe"

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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Gozza, 26 Jan 2008 @ 5:48am

Please explicitly pronounce where this news snippet takes place. Because I don't think that company lives in the Netherlands like me. Please consider that the most part of your readers does not live where you do. THINK GLOBAL.
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Alfred E. Neuman, 26 Jan 2008 @ 6:14am

Re:
Gozza said:
"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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George, 26 Jan 2008 @ 6:15am

Do those lawyers have an email address?
Cause I would like to send them a copyrighted "fuck you" letter.
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Joe C, 26 Jan 2008 @ 6:21am

If it's copyrighted...
Can some lawyer send you some copyrighted material, make you read AND act according to it, and prevent you from showing it?

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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Rick Sarvas, 26 Jan 2008 @ 6:23am

I think the judge is correct, but you do have opti
I'm not a lawyer, but here's why I think the judge is correct on this, and here is why…

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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Andrew D. Todd, 26 Jan 2008 @ 6:29am

A Respected Appeals Court Ruling Says:
"...We cannot approve an injunction under such circumstances as the plaintiff does not come here with clean hands. It has never been the purpose of the copyright laws to restrict the dissemination of information about persons in the public eye... the spirit of the First Amendment applies to the copyright laws at least to the extent that the courts should not tolerate any attempted interference with the public's right to be informed."
(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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Moz, 26 Jan 2008 @ 6:43am

inc got it just right
Use a web cam! Aim is at the C&D letter. You are not making a copy but merely making it visible. Like holding it up on TV, or hanging it in the window.
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Jack, 26 Jan 2008 @ 7:03am

moot point
Ok, so maybe it is copyrighted, but there is still something like 'fair use' and academic research.

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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Anonymous Coward, 26 Jan 2008 @ 7:10am

Re: ?
Mmm... most (all?) judges are some kind of retired lawyer. I don't think there's any conspiracy there.
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Anonymous Coward, 26 Jan 2008 @ 7:16am

Re:
I've read this sort of thing many a time. The fact is the jury has final say, and their write is inviolate. Read up for next time: http://www.fija.org/ A Citizen's Guide to Jury duty (pdf)
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Anonymous Coward, 26 Jan 2008 @ 7:17am

I've read this sort of thing many a time. The fact is the jury has final say, and their write is inviolate. Read up for next time: http://www.fija.org/ A Citizen's Guide to Jury duty (pdf)
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Anonymous Coward, 26 Jan 2008 @ 7:41am

this is one assholes opinion. Not law!
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Edward, 26 Jan 2008 @ 7:58am

Re:
Think global? That's hard to do when local laws are the ones that bite you on the arse. It's hard to worry about the Brazilian rain forest when local speed-trap cameras are scamming people out of hard earned money every day.
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AnyMouse, 26 Jan 2008 @ 8:13am

Let's see if it stands up to scrutiny in the appeals courts. Just because that law firm was able to find one judge that agreed with their opinion, doesn't mean that the appeals courts will agree.

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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atomatom, 26 Jan 2008 @ 8:28am

This is actually a bad decision for lawyers, and here's why.

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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Arnaldo Lerma, 26 Jan 2008 @ 8:36am

AND copyright being used to conceal evidence of FR
(clears throat)
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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David, 26 Jan 2008 @ 8:42am

Re: Re: ?
More accurately, judge is a type of job that a lawyer can get. There's nothing retired about them.
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David, 26 Jan 2008 @ 8:44am

Re:
They'll tell you what you are supposed to consider, but in reality (and legally) you can consider whatever you like.
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Raoul Duke, 26 Jan 2008 @ 8:50am

Court Says You Can Copyright A Cease-And-Desist Le
Why do stories overstate matters to fit an attractive narrative?. Of course a letter can be copyrighted. The District Judge (lowest on the federal rung) merely concluded that registration of the letter with copyright office constituted prima facie evidence of a valid copyright for purposes of addressing a Motion to Quash a Subpoena. Big Deal!!! There has been no determination as to any merits of the case. The judge said in his opinion: "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."

This decision means absolutely nothing. Get a grip the Dozier attorney is a tool.
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John (profile), 26 Jan 2008 @ 8:51am

I don't know...
Okay, I can sort-of understand how C&D letters might be copyrightable since they were created by a company, but how can this be true in actuality, since they're legal documents?

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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Ray, 26 Jan 2008 @ 8:56am

So?
I'm surprised no one has pointed out that just because something is copyrighted, and just because you can sue them for copying it, doesn't mean that the suit would succeed.

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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Anonymous Coward, 26 Jan 2008 @ 8:57am

where:
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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Rick Sarvas, 26 Jan 2008 @ 9:06am

Why is this really important?
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Rick Sarvas, 26 Jan 2008 @ 9:06am

Why is this really important?
Really, I don't see the reason why this is such an issue since all this really does is prevent people from publishing the content of a C&D on a blog, web site, forum, etc. for other people to see. It *does not* prevent you from talking about, quoting from it, showing it or even making copies of it for your own lawyer. Just don't make a few hundred copies and pass them out on the street. Also, this topic isn't about lawyers issuing C&Ds that are complete bogus and abuse of the legal system (whole other topic), but rather about the content of the C&Ds themselves - regardless of why they are issued.

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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lawdog, 26 Jan 2008 @ 9:15am

Just to clarify, this lawsuit isn't a copyright lawsuit. It is a suit to get a subpoena to find out who posted the letter. If you actually read the Judge's Order, it doesn't say that a valid copyright exists on the letter, just that Dozier has made some minimal showing that he may have a valid copyright. This is enough to get a subpoena to discover the identity of who posted it. The Court will look at whether the copyright is valied when and if Dozier actually finds out who posted it and sues them for copyright infringement. My guess is that Dozier will get his ass handed to him at that stage.
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Raoul Duke, 26 Jan 2008 @ 9:21am

"My guess is that Dozier will get his ass handed to him at that stage."

Agreed
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CJ, 26 Jan 2008 @ 9:25am

my worry is where do they draw to line. Would actions mentioned in above comments also draw legal action? If so, i would prefer to live in myanmar.
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Jason, 26 Jan 2008 @ 9:31am

Yet another case of the legal system in the USA is wacked.
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wow, 26 Jan 2008 @ 9:32am

Another automatic legal win for corporations by a corrupt Judge.
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Simple solution, 26 Jan 2008 @ 9:48am

Just paraphrase the letter online.
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Userman, 26 Jan 2008 @ 9:54am

Maybe someone already thought of this, but let's turn this back onto the lawyers. Let's copyright and post as many versions and variations of cease-and-desist letters we can think of. Then any law firm which sends one can be sued for copyright violation.
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shubla, 26 Jan 2008 @ 10:32am

How about using parody?
You could write a 'parody' of the letter and that would be allowed by the first amendment.
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Nick (profile), 26 Jan 2008 @ 10:34am

The more special interests subvert the law to favor their businesses, the more the consumer/citizen has contempt and disrespect for those law, and maybe even all laws.
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Anonymous Coward, 26 Jan 2008 @ 10:56am

Re: hmm
there is no fair use anymore
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Anonymous Coward, 26 Jan 2008 @ 10:59am

Re: are you serious
in any case, I thought the constitution gave us the right to organize nonviolently
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americangoy, 26 Jan 2008 @ 11:06am

Another blow struck for big business
Another blow against the evil, evil American people!

Long live Big Business!
Down with American people!
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bpcomp, 26 Jan 2008 @ 11:14am

Where do we draw the line?
Are death threats copyrightable? What about hate mail?
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Joe Gratz, 26 Jan 2008 @ 11:31am

That's not quite what the court said
Yes, Melaleuca's lawyer says the court said you can copyright a C&D letter. But that's not actually what the court said: instead, the court said that it wasn't going to look beyond the fact that the Copyright Office had issued a registration (which Melaleuca's lawyer characterizes as a "rubber stamp" process).
My post on the issue is here.
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bob, 26 Jan 2008 @ 11:38am

Fair Use
The Fair Use doctrine would permit the posting of the letter, even if copyrighted, for the purpose of public comment on the contents of the letter.
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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Jay Keating, 26 Jan 2008 @ 12:02pm

Another one bits the dust...
Just another example of the legal system out of control and judges with no understanding of the law as it pertains to our constitutional rights.

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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Tim, 26 Jan 2008 @ 12:15pm

NO.
I refuse to comply with this. Everyone should mass protest this flagrant violation of the public's right to protest and to speak out about what is happening to them by hosting and posting copies of cease and desist letters from this firm on his website. Press coverage is the only way we have of fighting back against many injustices, including this one. He can try and sue us all but eventually the mainstream press will pick up on what he is doing and there will be massive retaliation from the public, once they see how out of control this is.

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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Gary, 26 Jan 2008 @ 12:59pm

There is a workaround....
But its crazy-expensive. File suit for a declaratory judgment that the allegations in the letter are untrue. Make the letter an exhibit to the complaint. Wait until the court publishes the letter on their website. Then, link directly to the court-published copy of the letter.
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Steve, 26 Jan 2008 @ 1:03pm

Re: moot point
It's even better. What's to prevent the person who was sent this cease and desist letter from filing a copyright infringement lawsuit against the law firm for violating copyright on his or her name? After all, they have copyright on their name if they've ever written it down, and something tells me they didn't give the law firm permission to use it.
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Ray, 26 Jan 2008 @ 1:33pm

Time for action.
Where can I contribute toward an appeal?
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Justin, 26 Jan 2008 @ 1:56pm

Go US of A!
Way to go team! Stupidity not only reaches new heights in your legal systems, but you slap Free Speech in the face and give bullies and morons the right to do whatever they want. YAY!
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Mike, 26 Jan 2008 @ 2:10pm

Cease and desist copyright
If a cease and desist letter is issued there usually is not a charge made for them to the person receiving one. Is this not then a public domain product to be freely shared and dispersed? And if one receives such a letter and disposes of it how can there be repercussions if a third party places such disposed issue on a web site?
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Kimo Crossman, 26 Jan 2008 @ 2:19pm

post the letter on wikileaks.org
How about posting it on wikileaks and then a link to that maybe even an embed on the original site?
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Andy, 26 Jan 2008 @ 2:23pm

Will be overturned on appeal.
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Anonymous Coward, 26 Jan 2008 @ 2:33pm

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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Greg Beettam, 26 Jan 2008 @ 2:42pm

"This is an unfortunate ruling and can only serve to create a serious chilling effect on free speech." I cannot help but agree.
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Ed Broth, 26 Jan 2008 @ 2:45pm

Re: NO.
WELL PUT!

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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MJK, 26 Jan 2008 @ 3:00pm

i hate this country
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Rollie Cole (profile), 26 Jan 2008 @ 4:04pm

Re: hmm -- no magic in typing versus scanning
I have taught Copyright Law -- re-typing would be legally the same as scanning. But...

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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Anonymous Coward, 26 Jan 2008 @ 5:55pm

Re:
Please explicitly pronounce where this news snippet takes place. Because I don't think that company lives in the Netherlands like me. Please consider that the most part of your readers does not live where you do. THINK GLOBAL.

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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Anonymous Coward, 26 Jan 2008 @ 6:18pm

So let me get this right... The Media ignores people with stellar credentials, so supporters go out and get a blimp to get media coverage by proxy?

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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Shocked, 26 Jan 2008 @ 6:31pm

Incredible. They can threaten you, and you can't even tell anyone. The courts in the US have become outright disgusting. These verminous judges don't give a damn about anyones rights. Makes me want to puke.
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big boy, 26 Jan 2008 @ 7:40pm

if you send me a letter i own it not the person that sent it
if my name is on the letter i am the copyright holder not the pig that sent it
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Greg Beck, 26 Jan 2008 @ 8:23pm

the press release overstates the importance of the
The decision is certainly questionable, but it doesn't actually hold that posting C&D letters is copyright infringement. In fact, the court doesn't address the First Amendment or fair use at all. More details here:

http://pubcit.typepad.com/clpblog/2008/01/does-copyright.html
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Rex, 26 Jan 2008 @ 8:28pm

Copyright of Cs & D'Cs letters
I believe that several years ago there was a ruling that garbage placed on the street was no longer considered private. How could there garbage still belong to them if they got rid of it by sending it to someone else. They have forgotten the standard of reasonable use. It belongs even more to the receiver if they had to sign for it. many legal forms are from commercial template or law school texts. I'm not an attorney but right is right.
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say what!, 26 Jan 2008 @ 8:40pm

Law firm violates copy right by using defendants c
Law firm violates copy right by using defendants copyright works…
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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Anonymous Coward, 26 Jan 2008 @ 9:19pm

Damage amount of such a suit?
Lets say a S&D letter is copyrighted and someone posted it on the net and didn't ask any money for a copy of it.

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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Ted L Nancy, 26 Jan 2008 @ 9:47pm

Re:
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.

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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Daz, 26 Jan 2008 @ 10:28pm

Your headline is a bit misleading
The judge has not ruled on that yet:
"...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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Anonymous Coward, 26 Jan 2008 @ 11:03pm

Re:
Rupert Murdoch supports Ted Stevens?
LOL!

http://www.youtube.com/watch?v=EtOoQFa5ug8
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Eponymous Hero, 26 Jan 2008 @ 11:09pm

Legal-fu
This is just a gambit to scare off people who would rather remain anonymous by forcing them to appear in court. It exploits the fact that there is no legal precedent on whether a C&D letter can be copyright - so it must be tested in court.
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Anonymous Coward, 26 Jan 2008 @ 11:40pm

Re: Why is this really important?
It *does not* prevent you from talking about, quoting from it, showing it or even making copies of it for your own lawyer.

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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Joe Smith, 27 Jan 2008 @ 12:23am

He can dish it out ...
Seems Mr. Dozier does not like dissenting views. He has a blog but the comments section is turned off.

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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Joe Smith, 27 Jan 2008 @ 12:37am

Spam and spy ware
Mr. Dozier appears to be experienced in Internet law, having, as just one small example in a long career, defended at least one client who was accused of distributing spy ware and spam. As they say, even the Devil deserves a lawyer (or something like that).

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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gizzard_splitter_on_the_second_shift, 27 Jan 2008 @ 1:22am

Court Says You Can Copyright A Cease-And-Desist Le
Don't worry folks, I've just copyrighted the letters A,E,I,O & U. So he's gotta ask me to use that fuq'd up court decision on anyone. BTW., wasn't there some other odd-ball ruling by some judge in Idaho a little while back : Something just as crazy as this?
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Lucretious, 27 Jan 2008 @ 3:41am

Even back in the day they knew copyright laws were BS:

http://tinyurl.com/3xh4jo

lol
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Sean, 27 Jan 2008 @ 5:56am

Re: I think the judge is correct, but you do have
Thank you Rick for examining this issue critically. Everyone else seems content to play the role of Chicken Little.
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Rose, 27 Jan 2008 @ 9:27am

Hu?
What will become of chillingeffects.org who gathers a searchable database of Cease and Desist notices?
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Lars Clausen, 27 Jan 2008 @ 9:58am

Where does legal counsel fall?
If I'm handed a legal document, surely I can show it to my legal counsel. Funny thing is, I name the entire Internet as my legal counsel! Sure, I may listen more to some than to others, but I can show it to every single one of you.
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Kaida Kee, 27 Jan 2008 @ 10:28am

That's the world for you.
Honestly, copyrighting cease-and-desist!? How far will this world go, before it finally collapses into the next world war. Seriously, I think this is going a bit far, don't you? I mean, how unique can one be when asking someone to please stfu and go away?
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Hey Lars Clausen, 27 Jan 2008 @ 10:46am

"If I'm handed a legal document, surely I can show it to my legal counsel. Funny thing is, I name the entire Internet as my legal counsel!"

Where is my money? I ain't cheap legal counsel.
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Confused, 27 Jan 2008 @ 10:53am

A question
I apologize for my bad English up front.
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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A Lawyer, 27 Jan 2008 @ 11:27am

The Decision Does NOT Say You Cannot Post The C&D
Read the decision. It's a decision on a motion to quash a subpoena, and all it says is that there is a prima facie case of the letter being copyrightable and copied. The copying was easy to show and a certificate of registration establishes a prima facie case of copyrightability. The decision does NOT say that one cannot post the letter and comment on an attorney or company bullying you. To the contrary, though the court does not directly address that issue, the decision does say "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." The decision is not at all surprising and its implications are minor.
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Anonymous Coward, 27 Jan 2008 @ 11:58am

Anyone's work should be able to be copyrighted... But all copyrighted works can in fact be copied, (at least in part, as news-worthy, fair-use exceptions are available).

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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Joe Smith, 27 Jan 2008 @ 1:11pm

Re: The Decision Does NOT Say You Cannot Post The
OK - so what you are saying is all the decision says is that there is only a prima facie case that you cannot post the C&D and that you will get a chance to rebut the prima facie case at trial ( which will cost you how much in legal fees? ) but in the meantime the lawyer can drag you through the courts and issue subpoenas that you have to comply with on pain of imprisonment.

An important distinction indeed ...
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Jonnan, 27 Jan 2008 @ 5:42pm

What about "Officer of the Court"?
When writing a Cease and Desist letter, isn't an attorney acting as an officer of the court, a public function?

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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d2, 27 Jan 2008 @ 9:09pm

Comments by 'd2' in this lawsuit
I'm one of the parties in the Melaleuca case (I'm d2) that Dozier mentions.

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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Anonymous Coward, 27 Jan 2008 @ 9:13pm

Couldn't you go post the letter, and then give your opinion of it (commentary). Wouldn't that fall under fair use?
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ejay, 27 Jan 2008 @ 9:20pm

legal claims must be a matter of public record
Here is my suggestion:
1. non-compliance
2. mass media attention
3. higher court ruling
4. judge disbarment
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b0b, 28 Jan 2008 @ 12:01pm

Seems TD is wrong.
What the court said was that such material is presumptively copyrightable, and therefore a DMCA subpoena could issue to determine the identity of the poster. What the court did NOT decide is whether the copyrightable material (the C&D letter) was exempted under the fair use doctrine. In other words, the court did not perform a full copyright analysis and made no decision on the merits as to fair use. It merely decided a presumptive issue such that the subpoena could issue with the authority of the court.
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Mike (profile), 28 Jan 2008 @ 1:22pm

Re: Seems TD is wrong.
Er. An update was added to this over 12 hours ago saying exactly what you said. So not sure why you're adding this comment now.
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ndt, 30 Jan 2008 @ 12:59pm

Is this judge stupid or corrupt?
Either this judge is dumber than Sherri Shepherd or he got paid off. Which is it, Your Honor?
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tn, 1 Feb 2008 @ 11:01am

This is the Dozier Internet Law Blog:

http://johndozierjr.typepad.com/dozierinternetlaw/
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daniel gurwitz, 1 Feb 2008 @ 2:20pm

Re: are you serious
Mobosphere this is just anothr way of saying democracy, greek for the rule of the mob or as i like to call them the people
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daniel, 1 Feb 2008 @ 2:33pm

Re: are you serious
Mobosphere this is just anothr way of saying democracy, greek for the rule of the mob or as i like to call them the people
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Bob, 18 Feb 2008 @ 1:59pm

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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Bob, 18 Feb 2008 @ 2:01pm

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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betty jean copeland-wilson, 16 Mar 2009 @ 6:46am

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???????.
soneone is sending me nsty e-mails and i want to know who is sending them to me ,also where are they comming from and how can i make that person stop sending these nasty e-mails to me,lastly what can i do about it???????. some how this person got whole of my e-mail adress and i din't give my e-mail to this person because i don't deal with tis website. what cn i do about this once and for all to stop this???????.
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abs transcribes, 24 Oct 2013 @ 11:31pm

medical
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