Then Again, Posting Cease And Desist Letters May Be Okay

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

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.

Filed Under: cease and desist, copyright, streisand effect

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.

Filed Under: cease and desist, copyright, streisand effect

Nick Denton Using The Streisand Effect For All It's Worth

from the silly-facebook dept

Two stories popped up on the radar this morning that involve Gawker publisher/editor Nick Denton using threats of bans to get a lot more attention (which is likely exactly what he wanted). The first one seems minor, but is still important. Just a few weeks ago, Tom Lee was talking about how people need to assume that any info they put online on a social network site should be considered public info. Given that, it's interesting to see Nick Denton is facing a ban from Facebook for publishing some info from someone's Facebook profile on Gawker. While publishing the info may have been mean or tacky, and may have even violated Facebook's terms of service, it's laughable to think that banning Denton would actually stop that kind of activity. If anything, it would make it more common. First of all, it's not even clear if it was Denton himself who found the info, or if it was submitted by someone else. However, if Facebook does go through with a ban, many Gawker fans will take it upon themselves to send him info and screenshots from Facebook. All the ban will do, a la the Streisand Effect, is draw more attention to the fact that Gawker publishes info from Facebook profiles.

The second case, involves the Church of Scientology. Denton posted a video of Tom Cruise talking about Scientology. Scientologists are infamous for their attempts to misuse copyright law to take down any content they don't like. However, Denton is fighting back, and getting the video (and, of course, Gawker) a lot more attention in doing so. It certainly looks like Denton has figured out how to use such threats to his own advantage.

Filed Under: bans, nick denton, streisand effect
Companies: facebook

A Modest Proposal: Don't Try To Censor Students Who Have This Thing We Call The Internet

from the only-positive-stories-around-here... dept

Way back when I was in high school, I wrote for the school newspaper, and occasionally we had some problems with either the paper's "advisors" or the administration not liking something that went into the paper. While we were able to get plenty of stuff published, there were occasional arguments. The best we could do at the time was complain -- and eventually some of us started a non-school-sanctioned paper to allow us to be more free. That, of course, was in the days before the internet was widely available. These days, things work quite differently. Romenesko points us to the somewhat ridiculous story of a principal confiscating the school newspaper and demanding that the students write more "positive and uplifting stories" after he freaked out about a student's attempt to mimic one of the most famous pieces of satire: Jonathan Swift's A Modest Proposal. Apparently, the principal didn't get the satire of the piece, which proposed executing all of those who score in the bottom 25% on an IQ test. Of course, in censoring the paper, the immediate response is pretty much what should be expected these days. The editor of the paper resigned and posted the whole ordeal to Facebook, where it spread quickly, not only making the principal a laughingstock for not recognizing a clear homage to Swift, but it gave the actual column much more attention -- even to the point that the major newspaper in Atlanta, the Atlanta Journal Constitution, republished the student's modest proposal within its own pages. Now that's a positive and uplifting story.

Filed Under: high school newspaper, modest proposal, streisand effect

College Blocks Blog Critical Of Chancellor; Now That Blog Is Mainstream News

from the nice-work! dept

Witty Nickname writes "A new Chancellor was selected to lead a Community College District in northern Harris County, Texas. A critical blog was set up to blast the new Chancellor, who quickly had IT block it on all campus computers. As these things always do, it backfired. The college was sued, forced to unblock the blog, and thanks to the media attention, now everyone in Houston knows about the blog." Didn't quite work the way he expected, huh? One would imagine that the blog got barely any traffic prior to this. Perhaps ignoring it would have been a better option.

Filed Under: streisand effect

DMCA Abused To Get Sucks Site Taken Down

from the ouch dept

Greg Beck writes in to let us know about the latest example (in a long line) of DMCA abuses. In this case, a home building company, Powermark Homes, is upset about a website called Powermarkhomessucks.com. Now, there's a long legal history around the legality of so-called sucks sites -- and in most cases, they're perfectly legitimate. However, that battle hasn't even played out yet. While it's pending in court, the company took a second route to knock the sucks site completely offline with no judicial review whatsoever: filed a DMCA complaint with the ISP hosting the site, alleging copyright infringement on the site. The "infringing" content in question isn't even infringing. It's a photo that was included as part of the court filings in the case and is taken from a trade magazine (who most likely owns the copyright). However, thanks to the wonders of the notice and takedown system, the ISP is required to take the content down for at least 10 days to avoid liability. So down goes the site, despite no infringing content and without any kind of judicial review -- while the actual case sits and waits in court. As Beck notes, this is likely to come back to hurt Powermark Homes, because filing a false DMCA takedown notice can get you in all sorts of trouble. Then, of course, doing so also has a bit of a Streisand Effect as well, as a lot more folks are suddenly hearing that there are at least some folks out there quite unhappy with Powermark Homes.

Filed Under: dmca, isps, notice and takedown, streisand effect

We'll Sue You If You Don't Takedown Your Opinion Of Our Game!

from the good-luck-with-that-strategy dept

Left Behind Games, makers of (somewhat controversial) religiously themed real-time strategy games based apparently isn't happy that its video games were reviewed negatively across the blogworld. So, they did what any video game company would do: they improved their game. Oh... no, they didn't. As pointed out by reader Grey, they simply pulled out the lawyers and threatened to sue a bunch of bloggers for posting "false and misleading" content about the games. Of course, opinions can't be either false or misleading, so they'll have quite a case on their hands. In the meantime, perhaps this was merely an attempt at a reverse "Streisand Effect" as the attempt to take down those negative reviews is simply getting a lot more attention on those negative reviews. Whether or not that leads to sales is another story...

Filed Under: streisand effect, video games
Companies: left behind games

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

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

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

Filed Under: cease and desist, copyright, streisand effect

Lowes Tries To Silence Sucks Site For Complaints About Lowes

from the did-someone-call-Streisand's-name? dept

We've covered a variety of cases involving so-called "sucks sites," where someone registers as a domain name the name of a company and appends sucks to the end in order to create a complaint site. Companies have often complained that these sites are trademark violations, but that usually doesn't pass the moron in a hurry test. The latest such case involves home improvement store Lowes. A guy who bought a fence from them was upset that the installers botched the job. Lowes refused to take responsibility, so he set up a site at Lowes-Sucks.com and promptly received a cease and desist from the company claiming trademark violation. While early on, a few companies were able to get sucks sites shut down, it's become a lot rarer, as judges tend to recognize that criticism is perfectly legitimate -- and no one is likely to confuse a sucks site as being endorsed by the company. In the meantime, of course, in sending out such a cease and desist, Lowes has just drawn a lot more attention to the fact that they won't take responsibility for the botched fence install. Wouldn't it have just been better for business to fix the damn fence?

Filed Under: streisand effect, sucks site
Companies: lowes

Turkey Bans YouTube Again; Promoting Dumb Videos Again

from the sorta-goes-against-the-point,-right? dept

Back in March, Turkey banned YouTube over some silly immature videos that portrayed the country's founder in a negative light -- which is against the law. It was basically a lame video with schoolhouse insults. However, by banning all of YouTube, Turkey helped get that video a lot more attention, all over the world. So, in an effort to suppress an insulting video, Turkey managed to make that video quite popular. You would think that the folks in Turkey would have learned their lesson about how trying to suppress something online only makes it more popular. Apparently, they have not. While the original ban was lifted a few days later, apparently the courts have once again ruled that YouTube must be banned due to yet another video insulting various Turkish politicians. Nice of the courts to give this new video worldwide publicity like that.

Filed Under: bans, streisand effect, turkey
Companies: youtube