Then Again, Posting Cease And Desist Letters May Be Okay

from the never-trust-a-lawyer's-own-press-release dept

Mon, Jan 28th 2008 12:20am — Mike Masnick

On Friday, I wrote about a lawyer, John Dozier, issuing a press release claiming that you could copyright a cease and desist letter, and suggesting that anyone posting such a letter could face huge fines. Dozier's firm was also the law firm who filed a lawsuit against a gripes site, accusing the site (not the individual contributors) of defamation. It's also the same lawyer who claimed that the HTML on his website was covered by copyright and banned people from viewing it. Given all of that, I certainly should have known better than to simply take this lawyer's press release at face value. Thankfully, Joe Gratz has helped clear up the situation. The lawsuit that Dozier was referring to was not the one that had originally gained attention over the question of copyrights on cease-and-desists, but a different and much more complicated case, which we wrote about last month. You can click through to see the details (it's too complicated to repeat here). However, as Gratz explains, this latest ruling in that case simply stated that, since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the copyright office, then the copyright holder had ticked off the necessary checkmark to move the case forward. That does not mean that cease-and-desists are automatically copyrightable. It does not mean that posting a cease-and-desist you receive is not protected under fair use. Also, in that same case, the judge later denied using the copyright claim to unmask the anonymous blogger they were trying to reveal. Of course, Gratz also notes that Dozier conveniently left that part out of the edited version of the court's decision he uploaded to his site. So, while it's still not a great decision, it's not as crazy as it originally sounded... and it will act as a good reminder not to take press releases like this at face value. Update: Paul Alan Levy at Public Citizen weighs in as well.

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Filed Under: cease and desist, copyright, streisand effect

16 Comments

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MadJo (profile), 28 Jan 2008 @ 1:30am

euhm, isn't any work automatically copyrighted?
From the summary:

since the cease-and-desist had been registered at the copyright office

Why would it have to be? The © is automatically implied if a work is released, though it's hard to see how posting a C&D letter is infringing.
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Not Moby, 28 Jan 2008 @ 2:03am

Forest fires burn everything
A forest fire is usually started by a single spark, a single act. Years ago, the message was to act with personal responsibility. One way it was personified was by Smokey The Bear. He had a famous Tagline, "Only you can prevent forest fires". The effort was to deliver a simple message: Suppress any and all fires through education, and assist them to be cognizant of their immediate actions as well as downstream actions.

Forest fires are not pretty. They affect more than just the trees, but also affect private citizens, businesses, government personnel, and ecosystems.

It's great to observe what comes out of efforts of weaving together the offline world into the online world. Possibly the real problem probably isn't the copyrighting of a Cease-And-Desist letter, but rather somewhere, someone is trying to maintain a business model without a feedback mechanism, return policy, or focus on customer satisfaction in place. These all can create sparks which if not addressed could start a mighty big fire. It's not tough to imagine the company's website was listed alongside a blog filled with people's personal experiences. These experiences could be likened to sparks on kindling.

Instead of seeing the commentary as constructive critisizm to potentially better the company, perhaps that company decided to pursue legal action. Adding fuel to the fire.

Point is, with efforts like this, a more constructive way to find win-win-win situations is almost always outside of the legal system. When you go down the legal path, you guarantee win-loose. It may be helpful to consider reaching out to one of the fine consulting companies that may show up when you plug "corporate intelligence" into a search engine.

Smoky The Bear says "If you start a fire, put it out."
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Mike (profile), 28 Jan 2008 @ 2:06am

Re: euhm, isn't any work automatically copyrighted
Why would it have to be? The © is automatically implied if a work is released

It's true that the copyright is already there, but registering allows you to sue for damages. Without registering, you can only ask that it be taken down.
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Alex, 28 Jan 2008 @ 2:13am

Re: Forest fires burn everything
Isn't Smokey The Bear a copyrighted icon? Aren't you infringing by using him in your comment?
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Not Moby, 28 Jan 2008 @ 2:19am

Re: Re: Forest fires burn everything
I'm too lazy to look it up but I think he's a product of the US Forestry Service, a product of the US Government, so I believe it's public domain.
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Anonymous Coward, 28 Jan 2008 @ 2:20am

Re: Forest fires burn everything
Is Smokey the Bear a pot head? He sounds like one and so do you.
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Not Moby, 28 Jan 2008 @ 2:30am

Right, well, I guess that's what happens when you make an editorial decision to cut four paragraphs out. Shoot me your email address and I'll be happy to send the editorial in it's entirity.

notmoby3837@gmail.com

thanks
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ehrichweiss, 28 Jan 2008 @ 4:44am

copyrightable
The problem is...almost anything is copyrightable as long as you're the author, the work is original, you fill out the required paperwork, and you pay the fee. And one doesn't have to do just one C&D letter per filing; you could do thousands of them for the same fee.

This can be used against them of course but that's a task left up to the reader.
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Not Very Smart, 28 Jan 2008 @ 4:54am

Matter of Public Record
Is it not true that any document filed in a legal case, EVENTUALLY, becomes a matter of "Public Record"...available for anyone to review. Also these documents can be printed in law books for further review by attorneys or novice attorneys for the purpose of preparing other such cases. I really don't think that a legal document of this type could be copyrighted unless perhaps a referral to such a case number would weigh so heavily on a judges mind that he would never forget this scenario without some hint of reminder in decades to come short of a copy.Anyone should be able to go to the court house where this document was filed as a part of this argument and make a copy of this letter for their own use, no matter what the purpose as it is a matter of public record as defined by the courts.
If this is not true, then could you just place your web cam on the letter itself and show it as a live file rather than copying it, surely this has not become a copyrightable event...Please do not refer to me as "Not Very Smart" as I have copyrighted this monicker for myself. Just refer to me as a Big Old Dummy...
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Ajax 4Hire, 28 Jan 2008 @ 5:34am

A (c), first letter of my avatar...
please respect my copyright of A(c).

Saying does not make it so.
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mike, 28 Jan 2008 @ 7:02am

C&D letters
i haven't been able to get close enough to the story, but is this copyright on a specific boilerplate wording calculated to meet legal definitions in all cases, or are they claiming the concept? that would be a patent, wouldn't it?

i wonder if it would make sense for me to copyright a 'KITFO'letter.
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Overcast, 28 Jan 2008 @ 7:58am

So - then, just copyright the reply.

If he uses it in court, sue him for unauthorized use.
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Vincent Clement, 28 Jan 2008 @ 8:09am

From the Dozier Internet Law User Agreement/Privacy Policy:

We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so.

That is one of the funniest things I have read. I was unaware that copyright law prevents someone from viewing copyrighted material.
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JoeHark, 28 Jan 2008 @ 9:30am

Re: euhm, isn't any work automatically copyrighted
Yes, an original work is automatically copyrighted at the moment it is expressed (written sculpted, photorgahed, recorded, etc.) - and therefore, as you say in non-legal terms, a copyright is implied.

But PROVING a copyright in a legal suit requires that the work be registered. A requested copyright is rarely challenged at that point. I suspect you could submit the Gettysburg Address and get proforma document showing registration.

But when that item comes up in a law suit, its originality could be challenged on the grounds that the work is not original and merely having a registration would not stand up against evidence it has a prior life.
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Sean, 28 Jan 2008 @ 12:04pm

Re:
The solution to there problem would be to delete the website. I did not know that, that firm owned Hyper Text Markup Language.
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Anonymous Coward, 18 Feb 2008 @ 5:44am

Tangible works are copyright protected the moment they are made regardless of registration with the copyright office. They don't HAVE TO be registered. They are protected instantly. Registering them stregnthens a case if someone challenges your ownership. Ideas are not copyrightable and people need to understand that copyrights are NOT ABSOLUTE CONTROLS for the author, they are a balance of protecting the author's rights to profit, AND protecting the public to FAIRLY use the works. BALANCE is key. Study FAIR USE whenever someone claims they have full control of any tangible work and claim they can sue. I can copy anything I want if I am not doing it for profit. Distributing it (as can be claimed by posting it on the internet) might be a different scenario in certain cases, but there is this issue of TANGIBLE WORKS that comes into play there.
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