How Not to Write a Cease-and-Desist Letter

In our overly litigious society it seems that many companies are all too happy to fire off a cease-and-desist letter if they see something they don't like. Many times these letters end up online just causing further embarrassment for the company. One such company has decided to try scaring their targets out of this response by including a copyright notice for their cease-and-desist letter. Public Citizen has fielded one of these dumb letters and has invited them to try to assert their cease-and-desist copyright (which isn't even registered).

Comments

HOW NOT TO WRITE A SLASHDOT TROLL.

[Anonymous Coward]

     

Re:HOW NOT TO WRITE A SLASHDOT TROLL.

[Anonymous Coward]

FIST PROUST!

Re:HOW NOT TO WRITE A SLASHDOT TROLL.

[PitaBred]

He was a gay frenchman, who knows, maybe he'd enjoy it...

Re:HOW NOT TO WRITE A SLASHDOT TROLL.

[Anonymous Coward]

I laughed. Hard. Thanks :) Somebody mod this guy up!

Ssh!

[Anonymous Coward]

Don't tell Darl about this.

Re:Ssh!

[the_humeister]

Ssh is a registered trademark of SSH Communications Security. You will be hearing from our lawyers.

Good idea / bad idea

[networkBoy]

How to get bad press: http://farmersreallysucks.com/editorialtakedown1.shtml
How to get *good* press: http://farmersreallysucks.com/editorialgetafirstlife.shtml
-nB

Re:Good idea / bad idea

[sconeu]

The Linden Labs non-C&D is hysterical.

Re:Good idea / bad idea

[networkBoy]

The Linden Labs non-C&D is hysterical. I don't think it can get much better than this:

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected. Point is, LL got just as much (or more) publicity from this letter as they would have gotten from a normal C&D, but instead it's all positive. By responding they secured their position of ownership, while not looking like asshats. IMHO most C&Ds are written from the perspective that if the company does not respond they risk trademark dilution issues. The problem is they respond wrongly, not that they respond. In the case of my C&D from Farmers, they quote all the commercial portions of US code and none of the sections that deal with comment or criticism. Once you read through Title 15 and 17 you will find that it explicitly negates its self when dealing with the personal side of publication. Specifically:

(4) The following shall not be actionable under this section:
                (A) Fair use of a famous mark by another person in comparative
        commercial advertising or promotion to identify the competing goods
        or services of the owner of the famous mark.
                (B) Noncommercial use of a mark.
                (C) All forms of news reporting and news commentary. So all a lawyer has to do is send a letter stating that they are asserting trademark ownership and such, while recognizing this particular application of their trademark is protected. They could then go on to request alterations as they see fit, and likely get a much more positive response.
-nB

Re:Good idea / bad idea

[David Gerard]

Yes. It's amazing how good a response you can get by asking nicely and not being a dick about something.

Re:Good idea / bad idea

[nsebban]

The Linden Labs letter amazes me. Just like the page title says : "a company that gets it"...I think it's the first time I see that :)

Re:Good idea / bad idea

[Kingrames]

Well fuck that.

Copyright registration

[bnisonger]

There is no registration or notice requirement anymore to assert copyright.

Re:Copyright registration

[monkeySauce]

Yeah, IANAL but I have seen stuff like this mentioned numerous places: "Thus, a natural copyright exists from the time a work is invented or created, regardless of whether it has been registered with a particular Copyright Office." - http://en.wikipedia.org/wiki/Copyright

I have no idea about the fair use question, but it seems a copyright would apply to the letter either way. Perhaps an IAAL could clear this up?

Re:Copyright registration

[Tmack]

There is no registration or notice requirement anymore to assert copyright.

But isnt such a letter being sent to the complain about the forum's users useless unless all the potential "users" of the forum that are being ceased and desisted can read it (ie: everyone on the intertubes)? By posting it, the "defendant's" law firm is just notifying everyone that might be involved of whats going on, and that someone is complaining about their opinions, so they better stop complaining about the scammy infomertial company.

tm

Re:Copyright registration

[networkBoy]

True, however it is considered good for to register copyright before claiming damages for violating said copyright.
Also, IIRC an unregistered copyright, while still protected, is not as enforceable. That is to say, damages awarded against violation of the copyright are negligible, and often limited to the infringer being barred from continued infringement only, and no monetary damages awarded.
-nB

Re:Copyright registration

[Zeinfeld]

There is no registration or notice requirement anymore to assert copyright.

I was wondering quite where the assertion that there is no copyright in the letter comes from. Certainly its not a slam dunk, obviously abusive claim.

I think you could plausibly argue that publishing the letter is fair use in the circumstances, but that is fair use of a copyright material, not a demonstration that there is no copyright. The difference being that you would need to littigate rather a lot to establish a precedent.

Its still a very bad idea to bring up the claim since it reinforces the appearance that the intention is to suppress negative comment. That is not a clever thing to do in a defamation case, particularly in a US court. A particularly vindictive judge might well strike out the defamation case but not the copyright claims.

Now the threat to sue in Canada on the other hand is not such a great idea since there is more to Canada than strict defamation laws, they also have laws against abusive copyright claims.

Re:Copyright registration

[Anonymous Coward]

Parent is correct - copyright is never "registered" in USA. Trademarks can be registered, but even this is not required to be protected. Know thy rights:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

Re:Copyright registration

[Volante3192]

'Never' is misleading. Not required, but helpful. Especially if you intend to make money off your work.

I don't plan to register any of my school essays, but if I ever get around to writing the great American novel, I'd probably consider registering it.

Re:Copyright registration

[cfulmer]

Well... You are quite right that you do not need to register a work in order to have a copyright on it (at least in the U.S.). But, you can't sue somebody for infringement unless you've registered the original work. You can register after the infringement and then sue, but you still have to register.

Re:Copyright registration

[Artifakt]

A legal notice, prepared so as to be admissible in a court proceeding, becomes a document of the court. As such, its broader publication is from then on to be determined by a judge, who could, for example seal the record, theoretically including the document. Unless a judge actually did this, the document is part of the public record, subject to various 'sunshine laws' and basic rules for federal proceedings, that override any assertion of copyright.
        The proper method to deal with publication is to go ahead and press the case, and ask the judge to issue an order prohibiting both sides from discussing the case in public forums as a pre-trial motion. There is no real venue to stop publication of the legal notice short of actually taking the case to court, and there are some powerful SCOTUS decisions on the first amendment issues involved that say any such method would be prior restraint.

(please note my Sig. Any actual lawyers please feel free to correct me if I have got anything wrong here.)

Re:Copyright registration

[shashi]

Thank you... I'm glad someone around here actually knows how copyright registration and infringement suits work. :p

Re:Copyright registration

[Nikker]

The thing I find interesting about their Copyright claim is, the copyright "owners" sent them the copyrighted material with out their consent, but requires their interaction. So if a musician sends me a copy of their music for my review and I don't agree with the terms of their copyright I don't have to review it, but if your mortgage company sends you a letter involving your account and there was nothing in the original contract stipulating copyrighted correspondence then are you forced to agree with their terms?

Basically can you force someone into agreeing to a contract using these terms? I could send a C&D letter to anyone I want for any reason and having the copyright terms worded in a way that would force stipulations upon you, which of course would co-relate with my C&D terms. Ending up with a request that is mandatory to fulfill with out your decision or by any other obligation.

I could take great advantage of this by sending urgent legal action notices saying the copyright terms of the letter are for you to deposit money into an account:)

Re:Copyright registration

[badasscat]

Also, IIRC an unregistered copyright, while still protected, is not as enforceable. That is to say, damages awarded against violation of the copyright are negligible, and often limited to the infringer being barred from continued infringement only, and no monetary damages awarded.

Copyright is copyright. One copyright is not stronger than another copyright.

The only difference between a registered and unregistered copyright is the burden of proof. It is just slightly harder to prove that you own the copyright when it's unregistered. Registration is the process whereby the government implicitly grants acceptance of your proof in advance of any legal action. Without registration, you just have to be able to prove you own the copyrights at the time you take any legal action. But it's not that hard - the old trick of mailing a copy of something to yourself as soon as you've created it still works just like it always did. (Dated postmark.) But there are plenty of other ways of documenting copyright.

This is, of course, assuming what you're copyrighting is copyrightable.

Re:Copyright registration

[melanarchy]

That is a distinction that doesn't make any sense, since you can register and sue at the same time, registration becomes a part of a lawsuit, not something you have to wait around for before filing your suit.

Re:Copyright registration

[hal9000(jr)]

From the US Copyright office FAQ on registration http://www.copyright.gov/help/faq/faq-general.html#register:

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section "Copyright Registration."

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section "Copyright Registration" and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

I've heard about a "poor man's copyright." What is it?
The practice of sending a copy of your own work to yourself is sometimes called a "poor man's copyright." There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration [ephasis added by me].

so the mailing it to yourself adds no special protection.

Re:Copyright registration

[belmolis]

Copyright is copyright. One copyright is not stronger than another copyright.

The only difference between a registered and unregistered copyright is the burden of proof.

Sorry, this is wrong. Registration of the copyright provides a number of advantages, which are summarized here by the Copyright Office. Among them is that, if the copyright is registered within three months of publication or prior to infringement, statutory damages and attorney's fees may be obtained. If not, only actual damages may be recovered by the copyright owner. In the case of a letter such as this, which has no commercial value, actual damages would be zero, so the failure to register the letter effectively eliminates any financial recovery. (Of course, the author of the letter is unlikely to succeed in the threatened suit since this is an absolutely classic case of Fair use.)

Re:Copyright registration

[Anonymous Coward]

The dated postmark trick is a Hollywood invention. The post office will deliver any envelope with a stamp on it, sealed or not.

Re:Copyright registration

[Daniel_Staal]

You reading the document does not invoke any copyright issues. You should even be able to hand the orginal to someone else (not copying it) without copyright ever coming up.

The only way anything like that could have any effect is if you then copied the document, in whole or in part. Until then you haven't done anything but read what you were given.

Re:Copyright registration

[roystgnr]

But, you can't sue somebody for infringement unless you've registered the original work. You can register after the infringement and then sue, but you still have to register.

I was about to correct you, but I went to the US Code to find a relevant quote, and holy crap, it looks like you're right! Title 17, Chapter 4, 411:

"Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."

The exceptions in 106A appear to be about plagiarism/misrepresentation cases, not about simple "making unlicensed copies".

I thought you registered your copyrights so you'd be eligible for statutory damages and attorneys' fees in a lawsuit. That's in the law, but it's just a reason to register copyright before any infringement begins rather than right before you sue. You learn something new every day. This must be why lawyers charge the big bucks.

Re:Copyright registration

[imgod2u]

You can register and sue to have have the unlicensed distribution ceased. You can't sue for damages you think already incurred. Copyright and patents last for a finite amount of time and you are only afforded protection from the date it starts (when you register) to the date it expires. Any infringement before and after are not liable for cost of damages.

Also, I believe there is a time limit. In the case of patents, I think this is two years. If you do not patent an invention within two years of its conception, you no longer qualify for the patent. The law has been extended lately to automatically provide a small set of protection to anything published (including stuff on the internet, which isn't considered public domain).

Re:Copyright registration

[Anonymous Coward]

No, if I send you a letter, you don't have to agree to any terms in it. But, the letter is copyrighted by me and you are not free to post the text within it willy-nilly.

This is already established law: If I send you a letter, I retain the copyright on the text. You, however, retain possession of the physical letter, itself, and can show that letter to anybody you wish. There was a lawsuit regarding the personal letters written by an author to someone else where the letters were being published in a book (and I want to say it had to do with J.D. Salinger or perhaps Sylvia Plath and Ted Hughes, but I can't recall.) The estate of the author was claiming copyright and the publisher was claiming ownership.

The courts concluded that there is a difference between the physical letter and the words used within. Both sides are correct in their claims so if the book publishers want to publish the letter, they have to do it as one would reference a letter.

I can't take the text from Harry Potter, retypeset it, rebind it, and sell it on the street corner. That would be a violation of copyright held by the publisher of the text. But, I can certainly sell my copy of the text or sell my book that comments upon the text (including quotes from the text) etc.

Re:Copyright registration

[Creepy Crawler]

---The practice of sending a copy of your own work to yourself is sometimes called a "poor man's copyright." There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration

Thats just false. If you do NOT register a valid work, you must prove it is yours. By providing a federal datestamp, it does provide some basic claim that it was created by X date.

You still cannot sue for violating copyright if you didnt register it. The mail trick only works in preventing others from suing YOU.

Re:Copyright registration

[drxenos]

Correct, not since 1976. But you still need to register if you wish to file a lawsuit.

Re:Copyright registration

[hal9000(jr)]

Thats just false. If you do NOT register a valid work, you must prove it is yours. By providing a federal datestamp, it does provide some basic claim that it was created by X date.

Soooooooo, I cited an authoritative source. Where is yours proving or even intimating otherwise?

Re:Copyright registration

[Creepy Crawler]

Frankly, I need not prove what I say to some anonymous name on slashdot.

And as for your authoritative source, did you know that IRS's papers are not authoritative, nor are they even law? Go read up on Tom Crier Vs. IRS.

Who lost?

Re:Copyright registration

[Chess_the_cat]

The problem here is that it's impossible to show that you didn't mail yourself an empty envelope only to fill it days, weeks, months, or years later with content. The "federal datestamp" only shows when the envelope was mailed; not when it was filled.

Re:Copyright registration

[macsox]

See everyone? This is how people with user IDs under 10,000 discuss - they know what they're talking about and, before flaming someone, do a little research first.

A refreshing object lesson for us all.

Re:Copyright registration

[PitaBred]

Screw you, hippie! Ad-hominem and strawman attacks are a completely legitimate tool in a debate! You're with the terrorists!

Re:Copyright registration

[2short]

"A legal notice, prepared so as to be admissible in a court proceeding, becomes a document of the court."

True, but this isn't, because there is no court proceeding; this is just a letter from someone who happens to be a lawyer. The author does indeed hold copyright, so the proper way to stop publication is to sue anyone who does. Since the copyright is unregistered, they can't get legal costs, only actual damages, in this case nothing. They could mount an expensive lawsuit for no money, just to get an injunction to force the letter to be taken down. But they'd lose, because it's obviously fair use.

Re:Copyright registration

[nsayer]

I've never tried it or anything, but it might actually work if you address the back of the envelope after sealing it and conspicuously apply the stamp across the envelope seal.

Re:Copyright registration

[G00F]

Not to stir the pot or anything, but I did some quick searching on Tom Crier Vs. IRS (google and wiki) and absolutely nothing.

Is there a misspelling or someplace that would have this case?

Re:Copyright registration

[Sigma 7]

The problem here is that it's impossible to show that you didn't mail yourself an empty envelope only to fill it days, weeks, months, or years later with content. The "federal datestamp" only shows when the envelope was mailed; not when it was filled. Send the envelope under "registered mail", since registered mail requires the envelope to be securely sealed at the time it was mailed. If it isn't sealed properly (i.e. can reopen the envelope without damaging it), it isn't registered.

See http://pe.usps.gov/text/dmm300/503.htm#2_4_6

Re:Copyright registration

[oliphaunt]

And if you register the work before the infringement begins, the infringer can't claim innoncence (I didn't know it was copyrighted) as a defense.

Re:Copyright registration

[cfulmer]

Well, it actually has some gotchas. First of all, it takes the copyright office MONTHS to do the registration. And, there is currently a disagreement about whether the registration needs to be effective, or just filed. The problem is that the copyright office can reject a registration for appropriate reasons, so just filing isn't technically sufficient.

When you register, you have to deposit a copy of the work with the copyright office. Here, again, people can run into trouble -- what if the original author don't have a copy of the work?

Re:Copyright registration

[NMerriam]

By providing a federal datestamp, it does provide some basic claim that it was created by X date.

All it proves is you mailed yourself an envelope on that date.

Re:Copyright registration

[budgenator]

the way I understand it is it not being copyrighted that is being considered here but the fact that an unregistered copyrighted material can only get actual damages. A lawyer's boilerplate letter is worth about $50.00 at most, and $0.00 at most likely. The argument would be along the liens that because the letter was specific between the two parties, it's worthless to anyone else so the actual damages would be zero. Now if the letter is registered with the copyright office there could be an award of statutory damages of between $750.00 - $30,000.00.

Re:Copyright registration

[budgenator]

The courts are less likely to consider an infringement without copyright registration at the time of infringement to be willful and the statutory damages are $750.00 - $30,000.00 if the infringement is willful the damages are $200.00 thru $150,000.00

Re:Copyright registration

[cliath]

I will correct you. You were not going to correct anyone, you were about to make a fool of yourself.

Re:Copyright registration

[Anonymous Coward]

"Well... You are quite right that you do not need to register a work in order to have a copyright on it (at least in the U.S.). But, you can't sue somebody for infringement unless you've registered the original work. You can register after the infringement and then sue, but you still have to register."

That's misinformation too. Failure to "register" a right does not abridge that right. The registration process allows for an improved position in a preponderance of evidence situation. It is a good idea, not a requirement.

Re:Copyright registration

[fishbowl]

>All it proves is you mailed yourself an envelope on that date.

It doesn't even prove that!

A much better idea is to provide a copy to someone whose *testimony* will be *persuasive*. One such option is to
register your copyright with the US Copyright Office. Then, presumably, an official representing the federal government
will issue an affadavit on your behalf, which is, generally speaking, one very good piece of evidence to have.

Personally, I think it would also be wise to make sure your agent and producer and attorney all have really clear and detailed evidence in their files. Chances are very good that they, having a vested interest in the protection of your rights, will not hesitate to testify on your behalf. Are you absolutely certain that somebody from the *government* is going to come to your trial? I wouldn't want that to be my only option!

Re:Copyright registration

[Anonymous Coward]

It's ridiculous to think letters threatening legal action are copyrightable. It's a historical document of fact that is part of potential legal proceedings. EVIDENCE. What's next? Spam copyright applications for as many possible laws that could be written, and "use" copyright to prevent those laws from being enacted?

Falsely claiming copyright on something which cannot be copyrighted should be an actionable offense, if it isn't already. Somebody should check, and see if lawyers making willfully false legal statements can be sanctioned or disbarred. Yeah, I think those copyright claims at the bottom of cease and desist letters would STFU pretty damn fast. It would be absolutely hilarious to see some lawyer who made one of those claims disciplined in some way for making those statements. Then we could laugh at their cease and desist even twice as hard.

Re:Copyright registration

[webmaestro]

I'm going to claim ignorance on the part of patents, but copyright starts at the moment of fixation in a tangible medium (17 USC Sec. 102), and lasts for a period of 70 years (in the case of a natural person author, or 95 years from publication or 120 years from the time of fixation in the case of a "work made for hire." 17 USC Sec. 302.

Additionally, you can sue for damages you incurred before registering, because registration has no effect on whether or not copyright protection attaches. This was not always the case, but the 1976 amendments to the copyright laws (in order to bring the law in conformity with the Berne Convention) got rid of many of the formalities of copyright.

You do have to register the work before you can commence the suit, and registering does effect statutory damages and the ability to recover attorney fees. Registering is a good idea, if you are publishing the work or otherwise have a reason to think that there may possibly be a suit over the copyright, because it is prima facie evidence of the copyright validity. This is a rebuttable presumption, though.

Re:Copyright registration

[richie2000]

Here, again, people can run into trouble -- what if the original author don't have a copy of the work? Fortunately, it's probably available on the Pirate Bay.

Re:Copyright registration

[julesh]

Thats just false. If you do NOT register a valid work, you must prove it is yours. By providing a federal datestamp, it does provide some basic claim that it was created by X date.

No, it doesn't. The point is, it's trivially easy to circumvent, and the courts realise this. Here's how: mail yourself an empty, unsealed envelope. When you want to sue someone for infringing "your" copyright, place the work you want to protect in the previously mailed envelope. Voila! Retrospective "copyright" on something you didn't even write.

Re:Copyright registration

[julesh]

Send the envelope under "registered mail", since registered mail requires the envelope to be securely sealed at the time it was mailed. If it isn't sealed properly (i.e. can reopen the envelope without damaging it), it isn't registered.

See http://pe.usps.gov/text/dmm300/503.htm#2_4_6

And do you think that's strictly enforced? I don't know about US postal workers, but over here in the UK I wouldn't trust them to know a securely sealed envelope from a sheet of blank paper.

Re:Copyright registration

[1u3hr]

. Now if the letter is registered with the copyright office there could be an award of statutory damages of between $750.00 - $30,000.00.

The whole intent of copyright law is to encourage artistic expression.

What Works Are Protected?

the only category that is possible is "literary works", and I think it unlikely a judge would agree that a C&D letter was such, should it come to trial.

Re:Copyright registration

[ajs318]

Copyright is essentially a sweetener: it encourages people to create works of literary and/or artistic merit by offering them a temporary monopoly over their creations in return for a promise that someday, their work will be made available to everyone through the national archives.

Business letters are not in general works of art, and so are generally beyond the scope of copyright.

Re:Copyright registration

[MysteriousPreacher]

It's only going to work if you can prove that the letter was never tampered with. Poor man's copyright is relatively trivial to fake, so it's not going to have a great deal of authority in court.

If you're really worried about something, it's worth getting it notarised. It's relatively cheap, and at least then you'll have legal confirmation that the document existed at that time.

Re:Copyright registration

[budgenator]

oh I don't know lawyers are pretty grandiose, and would probably argue that their letters qualify as literary works

Re:Copyright registration

[tehcyder]

The argument would be along the liens

Dangerous typo in a legal discussion, who has the lien over what?

Re:Copyright registration

[Anonymous Coward]

The "poor man's copyright" really offers no copyright protection. It is far too easy to fake (I can mail an empty box to myself and then open the box and put whatever I want into it and seal it back up very easily) which is why it offers no protection at all.

A court will not accept it. There's a good explanation of why over at Snopes.com

http://www.snopes.com/legal/postmark.asp

In the UK, it may help you, but it's not a guarantee. You're better off getting a real copyright.

Succeeds to a degree

[DumbSwede]

Only read a couple of paragraphs before ceasing to care and going on to something else.

Re:Succeeds to a degree

[Machtyn]

But then you missed the best part. After informing the "Defendant's" attorney that they might try to sue the defendant in Canada, the attorney responded:

Instead of suing in Canada, why not bring suit in Tashkent? At least you'd get an exotic trip out of it...

There were some other good tidbits at the end of the letter, too.

Re:Succeeds to a degree

[PurPaBOO]

Tashkent is not a country - it's in Uzbekistan.

I already have a copyright...

[Anonymous Coward]

On cease-and-desist-cease-and-desisting letters and any related business processes.

I'm going to be a rich man.

Re:I already have a copyright...

[Alain Williams]

You can't have a copyright on something generic, however you could have a patent on it -- at least in those countries that allow such stupidities.

Re:I already have a copyright...

[Opportunist]

So one should patent C&D letters, just to make the madness stop.

Think anyone would cry "I got prior art" when you file for "extortion through legal threats"?

MOD PARENT UP

[imasu]

Was about to post this myself.

Oy vey....

[Kierthos]

Oh noes! Someone wrote something mean about my company on the internet! I gots to sue them!

Please, God (or other available deity), strike these litigious dumbasses with your holy fire/hammer/lightning from the sky (as appropriate).

Re:Oy vey....

[ultramkancool]

But what about the atheists... meh, let's go assemble a team to kill 'em all!

Re:Oy vey....

[Joe Jay Bee]

Please, God (or other available deity), strike these litigious dumbasses with your holy fire/hammer/lightning from the sky (as appropriate).

You forgot "noodle".

Re:Oy vey....

[alx5000]

Noodly Appendage, you infidel!

Copyright

[aitikin]

Correct me if I'm wrong (cause I know you will), but I was always taught that copyright exists the moment you put pen to paper. You will have a harder time proving it if you haven't registered it, but legally speaking you own the right to allow copies to made and or distributed it the moment it's written.

Re:Copyright

[Baricom]

That's true, but in the U.S., if you don't register, you cannot bring suit, and if you register late, you can only claim actual damages (as in, how much money you lost because somebody copied your work), not statutory damages (where the $100,000+ liability figures come from), and you cannot claim attorney's fees.

Note: I am not an attorney. I used http://www.publaw.com/advantage.html as my source.

Re:Copyright

[gurps_npc]

Everything I will say is USA specific. Other countries have different laws, so it does not apply to other countries. You are correct. The act of registering the work makes it legally more dificult to claim that you do not know the object is copyrighted. But as the letter itself mentions the fact that it is copyrighted, it could be interpreted as being proven already.

But that is besides the point, as being copyrighted does not in any way prevent someone from posting the full work and commenting on it, as long as it is not being done in the same envirnonment.

I.E. You you post their letter on the internet for laughs, but not copy it word for word and use it as your own cease and desist letter against people that are doing something you do not like.

Re:Copyright

[snwcrash]

Couldn't you just claim their letter was a derivative work of your slanderous forum posting, and therefore your copyright claims supercedes theirs?

Re:Copyright

[TheoMurpse]

Thanks for the note about difference in registration post- and pre-accrual-of-action. I'm in an intellectual property law class right now, but we haven't arrived at the "real world" of how copyright is done with respect to lawsuits yet. So you've taught a law student something new about IP law today. :)

Re:Copyright

[aitikin]

Well put. Thanks for the full explanation and the posting of your source. Probably going to be rather useful for me.

Re:Copyright

[webmaestro]

You are correct. Putting pen to paper is almost certainly "fixation in a tangible medium of expression." 17 USC 102, but you also must make sure you have copyrightable subject matter in order to enjoy the protection of copyright. The code doesn't say what copyrightable subject matter is, so you would have to go to case law to figure that out (or hire an attorney). Some cases you can look at are Burrow-Giles Lithograpic v. Sarony (111 U.S. 53), Bleistein v. Donaldson (188 U.S. 239), Bridgeman Art Library v. Corel (36 F. Supp 2d 191), Gracen v. Bradford Exchange (698 F.2d 300), Feist v. Rural Telephone (499 U.S. 340), CDN v. Kapes (197 F.3d 1256), Nash v. CBS (899 F.2d 1537), Baker v. Selden (101 U.S. 99), Nichols v. Universal (45 F.2d 119), Kregos v. Associated Press (937 F.2d 700), Apple Computer v. Franklin Computer (714 F.2d 1240), Lotus Development v. Borland (49 F.2d 807), Mazer v. Stein (347 U.S. 201), Kieselstein-Cord v. Accessories by Pearl (632 F.2d 989), Carol Barnhardt v. Economy Cover (773 F.2d 411), and Brandir International v. Cascade Pacific Lumber (834 F.2d 1142).

Those are just a few cases that talk about copyrightable subject matter.

There are many advantages to copyright registration, however. These include registration constituting prima facie evidence of the validity of the copyright, ability to recover statutory damages, and the ability to recover attorneys fees.

Copyright is a very interesting, and deceptively complex field, but I would encourage you to learn more about it. The drawbacks are the code is relatively vague and much of copyright law is caselaw, which is neither easy to interpret or necessarily consistent. If in doubt, talk to an expert.

This is legal information, not legal advice, consult an attorney, blah blah.

Re:Copyright

[damsa]

That's not true, not registering means you can't sue in Federal court. You can sue for damages in state court if you wish to pursue damages based on common law copyright.

Re:Copyright

[Anonymous Coward]

No, you can't. There is no common law copyright in the US. Wheaton v. Peters, 1834.

Last I checked...

[Neitokun]

You don't need to "Register" a copyright. The very act of creating something copyrights it.

Funny Stuff

[eldavojohn]

You can find the first letter to start all this here. I recommend you read that letter and then the one linked in the text.

They attempt to use Fair Housing Council of San Fernando Valley v. Roommates.com, LLC decision as a reason that Leonard is legally liable for hosting defamatory statements about an infomercial company! This is Charles Montgomery Burns quality humor.

Also, for further comedic value, I heavily recommend The DirectBuy website done entirely in flash. Which doesn't offer much except a registration form (click the upper right hand ticket). I can't find a damned thing on how their business model works unless I sign up for it. Seems to be a way to get home furnishings as discount prices. But for some reason you have to go to a show room for that. Sounds like something where the value isn't really there but they're certain they can sell you on the idea if they get a half hour of your time. Probably not a scam but pretty damned close--time share style!

Also what's interesting is how they respond to negative feedback questions:

We're happy to hear that you are considering a DirectBuy membership. We understand that negative information can make it hard for you to make an informed decision about how membership can meet your current and future buying needs, and we'd like to respond.

DirectBuy's unique business model is very different than mainstream retail operation. Our concept, combined with our continued growth over 36 years, has made DirectBuy, just like any other sizeable corporation, a target for controversy.

That being said, most of the information online is posted by individuals who have not attended an Open House, or have chosen not to become members.

We realize that DirectBuy is not for everyone, and that's why we encourage individuals who are interested in taking a calculated approach to undeniable savings to attend an Open House to learn about our unmatched selection, savings, and service. The complaints you see online from those who have actually visited DirectBuy represent a very small fraction of the hundreds of thousands of individuals each year who attend an Open House. (And to set the record straight, DirectBuy has never been involved in a class-action lawsuit.)

We're very proud of our long track record of satisfied members who have enjoyed the undeniable savings and wide array of merchandise that we offer. Our members invest upfront to avoid paying traditional retail markup and save significantly on virtually everything for in and around their homes. Members' satisfaction is our number-one priority.

But the only way to make an informed decision about whether DirectBuy membership is right for you is to attend an Open House event at a showroom near you. There, you'll learn more about the benefits of DirectBuy membership by gaining exclusive access to our showroom and getting a firsthand look at the savings, selection and services available to members from our team of knowledgeable professionals.

DirectBuy members, tell McBain about your membership experience here, too. We'd love to hear from you! I've bolded the sentence that worries me. It both sounds too good to be true and sounds like they take my money and promise me something later that's ill defined. What do you think?

I'll bet any amount of money that wasn't written by a person with a soul. Shady legal threats from an even shadier company. What do you expect?

Re:Funny Stuff

[Billosaur]

The really funny part is that their service is pretty much a scam... I've read up on them and apparently some of their policies are a little suspects, such as clause that do not allow you to return merchandise, cancel an order, or even (get this), terminate your membership! And where did this information come from? Try Consumer Reports. DirectBuy is just another company with its head in the sand. Personally, I can't wait to see if this will end up in court.

Re:Funny Stuff

[EricWright]

... a calculated approach to undeniable savings ...
... enjoyed the undeniable savings and wide array of merchandise that we offer.
...firsthand look at the savings, selection and services

I'm confused... are they savings, or undeniable savings? Why won't these clearly honest, above-board merchants keep their message consistent? Otherwise, how do they expect to sucker the gullible?

Re:Funny Stuff

[Luke Dawson]

What do you think?

I find this bit the most amusing:

We understand that negative information can make it hard for you to make an informed decision about how membership can meet your current and future buying needs, and we'd like to respond.

As if, somehow, only looking for positive information about something is the best way to come to an "informed" decision. If anything, I'm looking specifically for negative information when I am trying to make an informed decision before buying something.

Re:Funny Stuff

[FatAlb3rt]

Isn't their pitch like a K-Mart blue-light special? Ie, buy our $4k membership now, as this is your only chance. Can't sleep on it and purchase tomorrow, non-refundable after 3 days...

Re:Funny Stuff

[Anonymous Coward]

What do you think?

Hm. One has to read no further than "invest upfront"....now I wouldn't want to say anything negative, lest I be sued, but personally, I think something that rhymes with "Fear-a-bid steam" comes to mind.

Re:Funny Stuff

[jimicus]

I've bolded the sentence that worries me. It both sounds too good to be true and sounds like they take my money and promise me something later that's ill defined. What do you think?

I think it sounds a bit like how Costco works.

However, Costco are honest enough to admit that they're a cash & carry, allow you to sign in guests, you can return products and the registration fee isn't that high.

Re:Funny Stuff

[Creepy Crawler]

But Costco doesnt hide what they carry behind curtains either.

One can go look around before buying a membership. They're happy to do so.

That DirectBuy place is a ripoff. We requested to look around BEFORE buying. They literally laughed at us. So we took our 8 grand for furniture elsewhere (just got a new house and budgeted for furniture)

Re:Funny Stuff

[hawk]

>Probably not a scam but pretty damned close--time share style!

Hey! Those are great.

Aside from helping out with your vacation budget, it's fun to correct the salesman's abysmal economics, recalculate based upon market rates and your own investment returns, . . . :)

hawk, who turned his $50 in one-way casino chips into a real $400

Re:Funny Stuff

[Epi-man]

My wife and I attended one of their open houses here in town since we were about to do some remodeling on the house. Basically, we eventually got them to discuss the costs of things, and mercifully we had already done some shopping for what we wanted. In order to break even on the membership fees, we would have had to be doing on the order of $30-50k worth of remodeling in the year...not quite what we were planning on. Their membership fee was just about double our cost estimate of the project...of course we went a bit over budget...but not by 2x!

Re:Funny Stuff

[LMacG]

Right-o. If you decide to leave the showroom without purchasing the membership, you are "never" allowed back.

They make Scientologists look like the most forthcoming guys on the planet.

Re:Funny Stuff

[jandrese]

The best way to get kicked out of those seminars is to actually work the numbers yourself on a napkin and then pipe up about how massively wrong they are, or how they're trying to sell an 800 sq. foot condo a hour outside of Disneyworld for over a million dollars. The downside is that they don't give you the free stuff until the end, so you typically have to be good and just sit through it if you want those free tickets.

Re:Funny Stuff

[Anonymous Coward]

If you're looking for a shady operation, look no further than DirectBuy! We will do our best to ensure that you won't have to deal with criticism of us. Want vague guarantees of what you'll get after you pay? We provide! How about no returns and no order cancels? That's us! So become a member today if you enjoy regret!

See, it's good to consider only the positives.

Re:Funny Stuff

[hawk]

Save the lessons for the one-on-one they insist upon.

Also, discussing hard numbers is a great way to terrify your wife into thinking you might actually do it :)

hawk

Re:Funny Stuff

[jimicus]

Sounds like you did the right thing. That would have set off my bullshit detector too.

Re:Funny Stuff

[complexmath]

I've bolded the sentence that worries me. It both sounds too good to be true and sounds like they take my money and promise me something later that's ill defined. What do you think?

That sounds almost exactly like Costco, Price Club, etc, to me. All require a yearly fee for "membership" and offer items at a cost below retail prices. It ends up being a pretty good deal if you shop there regularly, as many of the prices are indeed significantly less than elsewhere. I have no idea what DirectBuy is like though.

Re:Funny Stuff

[mosch]

You have to go to a showroom because DirectBuy sells a "membership" that costs $5k for three years. (Don't worry, high-interest financing is available!) You're told that you may either join on the spot, or never come back.

After purchasing this membership you're then able to shop from a somewhat random collection of goods. You won't be able to return them, or cancel your membership if the whole thing pans out poorly, though.

Also, you can't take their price list to other retailers to shop around. It's confidential.

And if you're thinking 'wow, what a great scam', then you're in luck, you can become a franchisee, and work on conning people into using your mediocre company.

Re:Funny Stuff

[rastoboy29]

As a Libertarian, I make the distinction that Ayn Rand actually makes, between companies that MAKE money, and companies (and poeople) that GET it.  These guys qualify as the GETting kind, and are merely sophisticated thieves.

hmm, not copyrighted?

[Skadet]

FTFPDF

Moreover [. . . ] the copyright in the letter has not been registered.

IIRC, copyright doesn't need to be registered. Demonstrable evidence that that person who claims ownership/copyright is sufficient (see: poor man's copyright -- not the best example, but the line of thinking I'm going with)

Aside from that, save the arguments for the judge, imo. Corporate attorneys don't care about your "logic" and "laws", they're slaves to the suits above them just like any other corporate worker (*gasp* there are suits ABOVE lawyers?!?!?!)

Re:hmm, not copyrighted?

[Luke Dawson]

That's true, I believe. Technically, anything you create is covered under copyright, at least, that is the impression I get. This post I am writing right now is copyrighted. As such, I will be sending DMCA takedown notices to anyone who reproduces all or part of this comment.

Re:hmm, not copyrighted?

[Pulse_Instance]

As such, I will be sending DMCA takedown notices to anyone who reproduces all or part of this comment. When should I be expecting my DMCA notice I have always wanted to ignore one and never received the chance before.

Re:hmm, not copyrighted?

[Anonymous Coward]

That's true, I believe. Technically, anything you create is covered under copyright, at least, that is the impression I get. This post I am writing right now is copyrighted. As such, I will be sending DMCA takedown notices to anyone who reproduces all or part of this comment. Exactly. Then secretly put it in files that are shared on P2P network and sue for RIAA mass amounts of damages. This is exactly why intellectual property is utterly broken at it's very core. But your kind of shameless mockery will help hasten the demise of IP.

Every week, awareness grows of the IP fraud, awareness grows of the corruption and pollution the lawyers have foisted upon a formerly free society. Such letters clearly show the *intent* of intellectual property welfare protectionism is merely a weapon to prohibit competition and free speech. But there are still far too many fools who are so full of themselves, that they think their "intellectual" creations are "work", acts of genius, worthy of compensation. And the hilarious part is many freely posted posts on /. are far more valuable than many .mp3 songs or strings of code.

Who the hell has the gall to send a cease and desist letter with a copyright attachment! About 99.9% of all laws ever created need to be completely stripped away. Look at the completely unproductive waste which is occurring from the number of lawyers who graduate law school, from the total salaries siphoned away from productive society by lawyers. It's nothing short of out of control!

It's time for society to give all the lawyers and the "creative" type artists whose greed has brought this insanity about a big fat middle finger by banning all intellectual property.

Re:hmm, not copyrighted?

[einhverfr]

That's true, I believe. Technically, anything you create is covered under copyright, at least, that is the impression I get. This post I am writing right now is copyrighted. As such, I will be sending DMCA takedown notices to anyone who reproduces all or part of this comment. Please send me one. Even if the above quotation doesn't count, several words from your comment (separately) appear on my business web site....

One Possible Reply..

[Zymergy]

A Good comment posted from the original article:
7. No License... No Reading by Todd on Oct 8th, 2007 @ 8:41am

Dear Lawfirm,

Regarding your recent letter containing copyrighted content, I seem to not have an appropriate license to read your letter. I sure wish I could respond to whatever allegations you claim, but that would require that I read your letter, of which I do not have a proper license to do.

Sincerely,
Your Victim

Re:One Possible Reply..

[Anonymous Coward]

That would be "your possibly alleged victim, maybe, i just can't tell yet, as you can see".

Another kdawson screw up!!!

[Anonymous Coward]

Oh wait...

Oh well, my post still bitched about kdawson. Gimme mod points!

Re:Another kdawson screw up!!!

[Rakarra]

I'm not sure whether this should be Funny or Insightful, but that second line is damned true.

Oblig

[aldheorte]

i'm in ur mailbox
trashin' ur "rights"

Submission License

[Nymz]

All submissions sent to my email become my property, and reciept of your email shall consitute your acceptance of this agreement. Expect a couter-suit detailing your violation of my copyright, as I do not permit my letters to be sent via email. Thank you.

Re:Submission License

[Anonymous Coward]

So if someone sends you a copy of a book you think you own the rights to it?

Re:Submission License

[Seedy2]

No, but if someone writes a letter to me personally, I expect I own it.
At the very least communications between parties are owned jointly by both parties, and one should not be able to force [or even ask] the other to hold it in confidence unless first agreed to by both parties.

Re:Editors

[nuzak]

The editors don't need to fix the blurb, given that Public Citizen points out the same thing.

Direct link to the letter

[British]

is here(warning, PDF)

I tire of websites that make you jump through hoops to show you the dealio.

Re:Editors

[Volante3192]

They're actually quoting directly from the PDF. 2nd to last paragraph.

While you don't have to register for a copyright, it gives you much better legal footing if you decide to pursue claims against infringement on that copyright. Plus, registration is required to get any statuatory damages, so if Direct Buy sues, they couldn't get any cash from the infringment.

From the response letter...

[kryten_nl]

From the response letter:

Instead of suing in Canada, why not bring suit in Tashkent? At least you'd get an exotic trip out of it and litigation in a totalitarian state would be more consistent with the view that the Internet makes it to easy for consumer criticisms to be heard . But Leonard won't bother to defend a lawsuit in either location. Ladies (as if) and gentlemen, we have found the lawyer hero that the US was so desperately craving for, his name is Paul Alan Levy.

*Goes of to register paulalanlevy-fanclub.org*

Re:From the response letter...

[networkBoy]

How about donating to public citizen?

I know I have.

Re:From the response letter...

[Chris Tucker]

"*Goes of to register paulalanlevy-fanclub.org*"

Don't forget to copyright it, too!

Re:From the response letter...

[AutoTheme]

Haha! I love it! Ala ThePirateBay: - Willoughby & Partners "This gives a cause of action and jurisdiction to sue you in the UK." -anakata "Please sue me in Japan instead. I've always wanted to visit Tokyo."

Weasel worlds

[SmallFurryCreature]

The two in question here are "significantly" and "vitually". Watch the best tv series ever, Yes Minister, episode The Right to Know, for an excellent explenation of how these words can be used.

Sometimes I think all people should be forced to watch that series at least once in their lives, and if possible before election time.

Re:Weasel worlds

[fnord_uk]

Oh how true. My favourite line goes something like this (if my memory serves me well, which it often doesn't):

"I need to know everything. Not because I need to know, but because I need to know whether or not I need to know; and if I don't need to know, I still need to know, so that I know there was no need to know."

I think old Humpy must have inspired the Americans a little in their recent domestic surveillance escapades. I'm not saying that it's any better in the UK, mind you, but then I don't know.

Oh, and don't you mean Weisel

?

Oh boy lawsuits!

[dufachi]

Wow! Does this mean I can sue everyone who ever makes a disparaging remark about me on the internet?

Cool! I should be a trillionaire by February!

Re:Oh boy lawsuits!

[Belacgod]

Wondermark has patented this one already

Re:Oh boy lawsuits!

[Anonymous Coward]

Wow! Does this mean I can sue everyone who ever makes a disparaging remark about me on the internet?

Asshole!

Re:Oh boy lawsuits!

[Anonymous Coward]

Feburary? You've obviously not been reading everything that's being said about you. With your reputation, I'd aim for December at the latest...

All aboard the Short Bus

[Anonymous Coward]

We're taking a trip to the Infomercial Complaint Blog.

Another techdirt article...ugh

[Anonymous Coward]

Please stop posting stories from techdirt when there are perfectly good alternatives who actually claim to be OBJECTIVE in their reporting (as opposed to the techdirt editorial staff).

Ask Michael Crook...

[LinDVD]

Yeah, he was successful with such a technique...not!

Registering copyrights

[kingramon0]

I keep seeing the same falsehood repeated by many - that copyrights don't need to be registered.

It is true that the copyright exists the moment you create a work. However, you cannot defend your copyright in court until it is registered.

Think back to the SCO trial, and how Novell registered their Unix copyrights just before entering an action against SCO to defend them.

Re:Registering copyrights

[KC1P]

What my lawyer told me is that copyright registration shifts the burden of proof to the alleged infringer, but otherwise you're covered either way. But he still wants me to diligently register my copyrights.

Re:Registering copyrights

[Anonymous Coward]

Registering your copyright can be part of the process of filing suit. It will delay your suit by 6 months, typically, but provided the infringement occurred within 2 years of publication, you get statutory damages.

Bullies

[mulhollandj]

Bullies don't just threaten little children for their lunch money. The irony of the whole thing is that they often get unwanted press about their tactics. A great example of this is the RIAA.

Re:..right exists the moment you put pen to paper.

[roguegramma]

From http://www.copyright.gov/help/faq/faq-general.html#protect

Copyright .. protects original works of authorship

A cease and desist letter usually isn't original, it is a half-standard text.
That is why attaching a copyright notice to it might not work in many circumstances.

You also would probably anyway be allowed to make copies for the use in your defense against such a letter.

Re:Editors

[Anonymous Coward]

Perhaps you should RTFA first.

Serious answer

[PCM2]

Wow! Does this mean I can sue everyone who ever makes a disparaging remark about me on the internet?

You can sue anybody you want, at any time, for pretty much anything. Winning is another matter, but the courts do little to prevent you from being a nuisance.

Re:Serious answer

[damsa]

It's called Rule 11. You need to at least have some sort of legal relevance to sue otherwise you and your lawyer can be fined personally.

Re:Serious answer

[ajs318]

Apart from brand you a Vexatious Litigant.

It should be SOP in any civil case for the respondent to claim that the suit is entirely without merit and the plaintiff and their representatives are being vexatious litigants.

MOD DOWN! NSFW!

[Anonymous Coward]

NSFW, Parent has my balls in his mouth.

copyrights don't need to be registered...

[tjstork]

jeesh! how can a bunch of OSS GPL people not know that copyrights do not need to be registered under the Berne Convention.... RMS is laughing at us!

Re:copyrights don't need to be registered...

[jedidiah]

There's a mountain of difference between...

"Doesn't need to be registered"

and

"Needs to be registered to get full legal protection"

Just ask the RIAA if they are willing to leave their songs unregistered.

Re:copyrights don't need to be registered...

[Anonymous Coward]

Read the comments above that provide an important caveat to this.

Re:copyrights don't need to be registered...

[Anonymous Coward]

I'm laughing at you. :D

'Dozy', or what?

[Dr_Ish]

A close look at the silly lawyer letter reveals that is comes from the "Dozier Law Firm". The name seems apt. Their web site at http://www.cybertriallawyer.com include a YouTube video on the front page. Let us hope that they have the correct release for that. Of course, I would encourage eveyone to take a look at their web site, for informational purposes only of course! It is also worth noting that one of their people has the nickname 'Bull'. I guess I will continue my profound dislike of BestBuy. Their loss is Circuit City's gain.

Re:'Dozy', or what?

[Anonymous Coward]

Just so you know, it's Direct Buy, not Best Buy. Completely different.

Re:'Dozy', or what?

[rk]

Since there appears to be trademark confusion, maybe Best Buy can sue Direct Buy.

Can both sides lose somehow?

Re:'Dozy', or what?

[cavemanf16]

ROFL! His blog is a complete waste, too: http://johndozierjr.typepad.com/my_weblog/ No trackbacks, and no comments for any of the articles on the front page. LOL!!

And I love this ringing endorsement that appears on every single sub-page that he has linked at the top of the main page:

"Thank goodness for John and his team. These big law firms just don't understand how to handle technology litigation. With their trial record, technology expertise, and legal and business perspective, they have been a godsend...."

-- Internet Content Company CEO.

They are spam Lawyers, the lowest of the low.

[TimSSG]

http://www.cybertriallawyer.com/commercial-email-spam "As spam lawyers and spam attorneys, we help you comply with state and federal laws, and we defend you when you get hit with that spam lawsuit." Tim S

*READ BEFORE POSTING PLEASE*

[drachenfyre]

1. You do not need to register a copyright in the US to enforce it.
2. You DO need to register it before pursuing legal action in the US AND damages are limited to actual damages, not statutory damages. Legal fees expended in defending the copyright are also ineligible to be claimed in this case.

There are about 50 posts in this thread already going back and forth on this point and it's really clouding up what is a good discussion.

Re:*READ BEFORE POSTING PLEASE*

[Anonymous Coward]

Then I guess I shouldn't say that the supposedly copyrighted C&D letter could be obtained at http://www.citizen.org/documents/directbuycd.pdf by anybody with an internet connection? Good to know.

Re:*READ BEFORE POSTING PLEASE*

[evanbd]

From its content alone, your post is completely indistinguishable from any other post by someone who claims to know how copyright works in the US. It should be obvious that just because you know you're right, that doesn't mean the rest of us can tell that just because you sound certain about it. So, please post a link to a reputable reference, rather than just adding another post going back and forth on the issue and clouding up the discussion.

(FWIW, I think you're right about this. But it would add a lot more to the discussion if you could actually include a reference.)

Re:*READ BEFORE POSTING PLEASE*

[drachenfyre]

If you scan down, you'll see numerous links. The problem is, this issue was discussed back and forth 10-15 times at the time I posted this and even more people were posting the same.
I didn't want to take credit away from those who posted proper links and deserve the karma, simply by reposting them as a reply at the top.
I did want to end any other wasted discussion on this, as it threatened to destroy a good discussion.

Re:*READ BEFORE POSTING PLEASE*

[g0at]

2. You DO need to register it before pursuing legal action in the US You do? News to me. Could you cite a reference?

thanks,

-b

Re:*READ BEFORE POSTING PLEASE*

[drachenfyre]

http://www.copyright.gov/help/faq/faq-general.html#register
Good enough?

Re:*READ BEFORE POSTING PLEASE*

[g0at]

Hmm! Interesting, I was unaware/dubious of that requirement. Thanks!

-b

Re:*READ BEFORE POSTING PLEASE*

[snowgirl]

1. Copyrights do not have to be registered in the US for any purpose at all, even to enforce them.
2. Why register your copyright? There are higher penalties for violating a registered copyright rather than an unregistered copyright.
3. You do not have to register a copyright before persuing legal actions in the USA.

http://www.copyright.gov/circs/circ1.html

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Re:*READ BEFORE POSTING PLEASE*

[TekPolitik]

You do [need to register it before pursuing legal action in the US]? News to me. Could you cite a reference?

17 USC 411 prevents the action (only applies to "United States works", which includes works first published in the United States) and 17 USC 412 prevents access to particular remedies (affects works first published anywhere).

Despite what has been said elsewhere, there is an option for statutory damages (17 USC 504(a)(2) and 17 USC 504(c)), which is one of the remedies subject to 17 USC 412.

Interestingly even without statutory damages US copyright law allows for double-recovery of some amounts since the copyright holder can claim both their actual damages and the infringer's profits without either being set-off against the other (17 USC 504(b)). In the case where the copyright holder claims their own lost profits from the infringement and the infringer's profits from the infringement there is double recovery.

Re:*READ BEFORE POSTING PLEASE*

[mysticgoat]

If you scan down, you'll see numerous links.

Unless I'm mistaken (I know that its scary to contemplate that somebody posting on Slashdot might actually be wrong), you could put links to those messages that have the good links into your message. That would actually have saved some people from wading through the wasted discussions and provided credit where it is due. The result would look something like this link back to the parent post. But hopefully it would provide some useful content.

But this is Slashdot, where the simple technological solution is oft eschewed in favor of something with a few more convolutions...

Re:*READ BEFORE POSTING PLEASE*

[qzulla]

It's not a requirement.

However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.

qz

Re:*READ BEFORE POSTING PLEASE*

[said213]

it's like we're not even reading the same site.

Re:*READ BEFORE POSTING PLEASE*

[falsified]

The most obvious of which being that it's often impossible to prove you wrote/produced something before someone else did unless you've publicly performed said art. There's a reason any reputable firm in America would bother registering their copyrights.

An unrelated question: Is there anything analogous to the prior art caveat in copyrights? If it's a standard cease and desist, is that even something you can copyright?

If not, can you copyright business correspondence? I'm doubtful because it would make it unlawful then to profit from the correspondence if it came from another entity, no? That seems a bit off.

Re:*READ BEFORE POSTING PLEASE*

[deblau]

Sigh. Read this. Relevant excerpt:

[No] action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

That's the basic rule, not the whole story. Read the linked text for the rest of it.

Re:*READ BEFORE POSTING PLEASE*

[Technician]

You do not need to register a copyright in the US to enforce it.

True, however some fair use includes discussion of the material and a copy of the material in whole or in part. The lawyer failed to get him to sign and return a NDA prior to sending the C & D letter. Publishing unsolicited letters and pointing out the flaw may constitute proper protected fair use regardless if it was copyrighted material. If he used the exact verbabe in his C & D letters to his detractors, then the lawyer may have a legal beef with the commerical use of their copyrighted works. I don't think they have a case in its present use.

Re:*READ BEFORE POSTING PLEASE*

[webmaestro]

Wow, a person that actually cites his/her references without just regurgitating what they have read on somebody's web site or blog about copyright. Too bad they aren't bluebook cites (Just kidding). I just get a little frustrated with all these people who think they are giving useful information but are just confusing everybody. A little ironic how many slashdotters (but not all) make fun of lawyers and the legal system, yet try to pretend they know what they are talking about.

Just a word of advice for all those armchair copyright lawyers: the copyright law is much more interesting and complex than the Copyright Code would lead you to believe. It is very vague and has many reasonable yet contradictory interpretations. By all means, if it something that interests you then seek out information about it. While the Internet is a great resource for many things, the law is not necessarily one of those. Reputable Internet sources of things like interpretations of statutes and caselaw are few and far between. Print sources are probably the best way to learn about it. Hopefully there is a law library near you that you can visit to learn about these things. If you happen to stumble upon one that has a copy of Nimmer on Copyright (the most cited secondary authority on copyright) then that is a great resource. There can't be enough said about good ole booklearnin'.

Re:*READ BEFORE POSTING PLEASE*

[1u3hr]

If not, can you copyright business correspondence? I'm doubtful

What Works Are Protected?
literary works;
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works

A lawyer might claim the letter was a "literary work", but I think few judges would entertain that idea.

Should I or Should I not Sue???

[3seas]

Mobbing at its finest...

Or do I just wait for others to change

and for more supportive information to come along such as Non-Patentable findings that in essence supports Abstraction Physics and the Virtual Interaction Configuration

So should I sue or just wait for the slanderers and libeler to realize they steped in their own B.S...?

Copyright enforcement on a cease and desist order to prevent the receiver from ...... doing what? Defending themselves? Standing up for consumer rights? ..... ... or just applying copyright Fair Use?

I think what needs to happen so to not allow the receive from publishing the cease and desist order is to have it signed by a judge as a court order.

Encryption is the key

[LM741N]

Maybe these dumb companies can encrypt the cease and desist letter and then if anyone tries to fool with it they can go after them with the DMCA.

MOD PARENT down

[Anonymous Coward]

TFA never stated that there was no copyright, only that it wasn't registered,
If they thought there was no copyright at all, they wouldn't have needed to mention that their publshing of it was fair use.
Winning a suit for an un-registered copyright can only get you actual damages, which would be approximately $0.00 in this case.

Stupid People Amaze Me

[stewbacca]

I didn't realize people who were stupid enough to buy something from an infomercial actually know how to get online and post to forums. Ok, sorry, off topic, but still...Who buys anything they see in an infomercial anyway?

Open house

[iknownuttin]

That being said, most of the information online is posted by individuals who have not attended an Open House, or have chosen not to become members.

I once was "invited" to be a broker at a certain mutual fund that I can't even remember the name of anymore and they spent over an hour showing us overheads (yeah, it was back in '84) of broker's checks showing $1500.00 a week in passive commissions. In other words, you get someone to buy this mutual fund and every time they put more money in, you'd get a commission - that includes dividend reinvestment. Towards the end of the sessions, they told us how we'd get the sales - pester family and friends. I left and never came back. One, if I did that, I wouldn't have any friends or family. Two, their business model was to "recruit" as many people as possible (you had to pay for your own series 7), and keep the very rare one who didn't fail. They were looking for fresh meat. I went to a real estate agents open house for a large national firm and they were just looking for fresh meat for their grinder.

There's a huge turnover for these types of retail sales jobs and they're always looking for fresh meat. It looks like this firm is the same thing - another Amway or what ever it's called.

Now, don't get me wrong, some, ok very few, of these sales things aren't the rip-off they seem. Mary Kay has been pretty good to the women I know who do it and their customers seem to be satisfied. I almost went for it - but how is a guy to sell Mary Kay? Sell to transvestites?

Re:Open house

[haystor]

Guys sell to women also. Some do very well as you can provide instant confirmation about how great the product works.

Re:Open house

[jandrese]

How is that "mutual fund" you talked about not a pyramid scheme? They even had the classic pyramid scheme tactics (flash money like crazy and tell you to recruit everybody with a heartbeat).

The rule of thumb for those "seminars" is that the more they talk about the money the less reputable it is and the less money you would ever see from the scheme.

True but

[einhverfr]

In the US, you cant get statutory damages for infringement of a non-registered work. YOu can only get actual damages from the infringement.

IANAL, of course.

On other words, if a letter like this is not registered as copyrighted, they can sue you for the money they lost due to sales of the copyrighted work, but not statutory damages. Since they arent selling this in bookstores, I seriously doubt they could sue for any damages.

Copyrights don't have to be registered

[r_jensen11]

The only time you have to register a copyright is if you want to be able to collect money from copyright infringements. Otherwise the copyright holder can seek a court order that would result in a cease and desist. Of course, if the copyright was registered, it would help out in terms of proving that there is copyright infringement; but like I said, it's not necessary.

http://mofo.com/

[Chris Tucker]

Now THERE'S a law firm with attitude!

(and yes, they knew full well exactly what they were doing when they registered that domain name.)

form letter

[Johnny Mnemonic]

My wife worked in the Claims department of a large rental car company. If you were hit by a rental car of this company, and the driver accepted the insurance at the time of rental, you would contact her to get your claims fulfilled. Yes it sucked. Notice the tense.

Anyway, she received a letter from an attorney that demanded a response, but stipulated that form letters would not be accepted as legit response.

She sent a letter, but it was returned with "FORM LETTER REJECTED" stamped all over it, and the lawyer subsequently demanded more communication.

Which she ignored, because:
a) it wasn't a form letter;
b) even it was, the attorney couldn't possibly prove it;
c) even if he could prove it, you can't dictate the terms of the response as long as it's legally sufficient;
d) his stamping of the letter provided nice verification that he had received it and read it. He may as well have signed for receipt.

He kept demanding further response, and she followed up with letters that basically said "see previous".

HAW! HAW!

[msauve]

the old trick of mailing a copy of something to yourself as soon as you've created it still works just like it always did. (Dated postmark.)

I plan on mailing a bunch of (unsealed) manila envelopes to myself tomorrow. Then, in a couple of years, I'll retype one or two titles from the NYT bestsellers list, stuff them in an envelope, seal it, and sue.

According to you, I'll have ironclad proof that they're infringing my copyright. I'll be rich!

Re:HAW! HAW!

[DustyShadow]

I know you're being funny but I just wanted to point something out. Novelty is not a requirement for obtaining a copyright. Independent creation is a defense to copyright. Sure, it's pretty rare for two people to come up with exactly the same thing but it's theoretically possible. This is especially true for literary works where one can be infringing even if it's a nonliteral copy. Originality is required for a copyright but that is not the same as novelty.

Funny Stuff?

[bwcbwc]

I see what you mean about the bolded sentence. When you combine that with the fact that you have to go to one of their sales pitches to learn more details, it just screams "high-pressure marketing". Me, I'll just wait till it's on special at normal suppliers.

They giveth a License ..

[Archangel Michael]

"FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY."

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

Just use the copyright within the guidelines of their copyright license. :-D

In the UK...

[meringuoid]

... Over here, there's a standard form for contemptuous replies to legal bluster. It goes: "I refer you to the reply in the case of Arkell v. Pressdram".

Fair use

[Dachannien]

Fair use protections take into account, among other things, the impact on the viability of sales of the copyrighted work from the perspective of the copyright holder. Unless DirectBuy is in the business of selling C&D form letters (which is unlikely, since templates on the Intarweb are far less than a dime a dozen), they're blowing smoke up their own asses. If they did try to file suit for reposting the letter, they'd face a real risk of paying the target's legal costs when they lose, according to copyright law.

Re:Fair use

[Billly Gates]

THe company does not have to repay legal costs if their in the USA. Only monetary damages and punitive damages are covered and punitive damages do not cover legal costs. Either way the burden is shifted on the defendant.

In other countries like England you can sue to recomp legal costs as well as monetary damages. Punitive damage suites are very well and only if a company is a direct harm to the publics well being.

PS I am not a laywer but just taking a business law class at school this semester.

Re:Fair use

[Dachannien]

If you make a claim in US court under copyright law, and you lose, you can be liable (at the discretion of the court) for the legal costs of the person you sued (17 USC 505).

'sup Don, Esquire?

[Anonymous Coward]

I look forward to hearing the lawyers response, even if he choses to publish it in a law journal . . .

Hints of a very serious legal problem!

[mlwmohawk]

It is clear that copyright is being misused. Too many people think that copyright law allows them to dictate every aspect of how a work can be used. This is a serious problem, unfortunately copyright law is sufficiently vague with regard to clear rights of both users and creators alike, causing most any serious dispute to be brought to a jury. (short of settlement, of course)

I have been starting to think of the various free software licenses and application to copyright law. The concepts around "fair use" is interesting. Copyright tries to define the rights of society in balance with the owner of the works. There is an "inherent" right to use a published work simply because it was published and it is acquired legally.

We can all agree, there are currently and should always be some limits to what, exactly, the control over published works a creator actually has in balance to society. Right? that's what "fair use" is all about. However: Think about a binary program, it is arguable that producing a binary program from a legally obtained copyrighted material does not violate copyright law regardless of the GPL because the copyrighted "expression" is never republished. Copyright only covers a particular expression of ideas, not the ideas themselves. Further more, modifying a source file, never publishing it, and *only* producing binary files with it may also fall under fair use.

If this is the case, portions of the GPL may be unenforceable. The provisions that changes *MUST* be republished relies on copyright law, but the portions about how you choose to use it may be moot because you can refuse to accept the GPL and rely merely on the fair use statute of copyright.

I don't like this notion at all, but it may be an arguable position that rips the teeth out of the GPL.

The fundamental question: Does program compilation produce a derivative work or does it produce an original work? None of the original expression like comments, variable names, and readability are compiled into the binary. If it can be argued successfully that a program binary is not a derivative work based on copyright law (NOT the GPL's definition), then GPL has no teeth.

(And no, I am not a Microsoft shill, I am a free software writer myself and I use the GPL when I publish free works.)

Re:Hints of a very serious legal problem!

[Anonymous Psychopath]

It's an interesting argument, but it seems to me that it could only work if the GLP copyrighted material was compiled to binary and then modified. Unless you were somehow able to create a derivative work completely in binary, you would have to modify the source, and the GPL requires that modifications to the source be distributed under GPL.

Re:Hints of a very serious legal problem!

[russotto]

If this is the case, portions of the GPL may be unenforceable. The provisions that changes *MUST* be republished relies on copyright law, but the portions about how you choose to use it may be moot because you can refuse to accept the GPL and rely merely on the fair use statute of copyright.

There aren't any such provisions, so there's no problem. You can modify sources and produce binaries all day, not distribute them, and you're legally fine.

If you distribute the binaries, that's another question. Good luck showing that not only making a derivative of a copyrighted work, but distributing that derivative to all and sundry, is fair use.

It's pretty clear that a program compilation cannot produce an original work; it's a mechanical process. The only way copyrightable expression can get into the binary is from the sources or from the compiler. Either way, the work is derivative. It is possible that you can compile a public domain binary from a copyrightable source, but those cases are all oddities and don't affect the general case much. For instance, I could create a nicely commented "hello world" program with a copyrighted treatise on the history of "Hello World" programs in the comments, but the compilation of such would still be a "hello world" binary in which I certainly had no copyright.

ERROR! - Re:HAW! HAW!

[B_SharpC]

Sorry, unsealed manila envelope method fails. Registered mail, return receipt, postal clerk wraps and seals the certified strip sealing the envelope. The law is about 'tamper evident'. You cannot put something into an envelope after the fact without obvious tampering.
 
Second prior point made about US Gov website on copyright. They only cover their own profiteering interest to Register a copyright. Their site only compares tween "poor man's" and "Registered".
 
Poor mans copyright is still valid for the cheap price. Then later, ONLY if your chatter has value, then do an official Registered so you can recover attorney costs.
 
I must be crazy to waste my time responding to innane comments. Lock me up! lol

Isn't the internet wonderful?

[singingjim1]

I can't think of any other tool that has given the 1st Amendment so much rich and solid soil with which to grow and have blossom free speech.. Only Larry Flynt can claim to have had so much influence over how we are able to express ourselves commercially and publicly.

I wish slashdot would allow me to post a picture

[Tweekster]

It would be that animated gif of the guy beating a dead horse.

Does anyone have any actual insight into this, yes we get it, you don't need to register copyrights, move along to something relevant.

Register Late ??

[B_SharpC]

Register copyright late?? When is late? If it takes 3 years to write a book is late the first initial topic idea or 3 years later? It is stupid to re-register various 'in work' ideas over a several year period.

Proust in his first post wrote about wrote about -

[wsanders]

1) [nothing]

2) "In Search of Lost Time Posting to /."

This post encoded with ROT26

[Torodung]

Good idea. Turn off you monitors before reading this, because I'll come after you for using a ROT26 circumvention device. ;^)

Seriously though, lawyers can threaten you with any legal theory they can dream up. That doesn't mean it'll stand up in a court.

Remember: It's possible get your J.D. with a "C" average, and then pass the bar on your 14th try. I'm embarrassed for these guys.

--
Toro

Sue me first . . .

[Anonymous Coward]

you whiney little faggot!! ;)

Damages limited to actual damages?

[eldacan]

If damages are limited to actual damages, how could the RIAA get $220,000 out of this Thomas woman for 24 songs? Does the judge or jury or whatever actually believe that damages were indeed $220,000?

Re:Damages limited to actual damages?

[jeffasselin]

They registered their copyrights, which makes them eligible for statutory damages maybe?

It's the Internet, stupid

[cdrguru]

We have been engaged in an interesting experiment for the past 15 years or so. It is called the Internet. Under the terms of this experiment, everyone is immune to prosecution because, well, it's the Internet. It isn't "Real Life".

Not knowing this, the folks at DirectBuy do not realize that they have utterly no recourse to anything stated about them, no matter how unsubstantiated, defamatory or libelous. Their lawyer seems to be under the impression that there is some other sort of universal shield law for everone (publishers, web service providers and posters alike) on the Internet. I suspect once one gets their head around the idea that it is the Internet it will become obvious that they can't sue an IP address and defending an IP address is pointless.

Unsubstantiated, anonymous reviews on the Internet are the norm. You can find scathing reviews of high school dates intended to utterly destroy people. You can find scathing reviews of nearly any business that some customer has had a problem with with the clear intent to force the company out of business. Normally such sites do not post anything positive, mostly because positive reviews are hard to come by. People are far more motivated when they perceive they have been wronged.

Of course, if you find such a review of your personality, your business or anything else you might as well just declare bankruptcy, move to a deserted island and kill yourself because it is highly unlikely you are going to get any sympathy on the Internet. And getting the information removed is impossible. After all, it is the Internet and nobody is responsible for anything.

Re:It's the Internet, stupid

[Anonymous Psychopath]

Interesting rant.

There's truth in your comment that you only hear from the bad customers and not from the good ones. Satisfied customers have had their expectations met. It's just as true that the majority of people will just quietly take their business elsewhere than even let a company know it had a bad experience. I've been guilty of this many times, but lately I've been better about making an effort to let a company know when I'm not happy, so that they have a chance to keep my business. After all, how can they address my problem if they don't even know there is one? Smart companies proactively ask their customers how they are doing.

Good companies will listen to complaints and try to resolve the situation to everyone's mutual satisfaction.

Bad companies are afraid of complaints because they lack the capacity to address them and they fear other potential customers will hear them. More so now with the popularity of the internet.

Who would you rather do business with, someone who occasionally makes mistakes but tries to make it right, or someone who tries to sue you when you complain?

Lastly, you can absolutely successfully sue someone for defamation, slander, libel and copyright infringement on the internet. Anonymity is a very thin shield for the majority of users. Of course, the definitions of those things may not be what they are thought to be. Simply stating an opinion doesn't qualify.

Eh. Why respond at all?

[jonadab]

Lawyers say all kinds of junk. They're a lot like marketing departments that way. If it's obviously completely bogus, just toss it in the circular file. A letter from a lawyer does not have any inherent legal force. It's not a court order or anything, just a letter. You don't have to respond unless the thing has enough merit to *warrant* a response. Otherwise, you can just delete it and get on with your life.

Disclaimer: IANAL.

Confirmation of my hunch

[dasunst3r]

I have harbored this hunch that the amount spent on marketing is inversely proportional to the product/offering's quality. I guess I can now add DirectBuy to my list of people who I should not buy from.

The earliest example of a posted Cease and Desist

[CuriousKangaroo]

I believe the following is the earliest example of a popular (at the time) site that received a Cease-and-Desist letter and responded by posting it for everyone to see:

http://www.ibiblio.org/elvis/manatt.html

Also see the following articles which mention it:

http://home.earthlink.net/~barefootjim/writing/websight/websight1.html
http://www.cnn.com/SPECIALS/1997/web.whatnext/hit.miss/hit06.html

Of course, posting such letters has been the standard response ever since. Interesting that it took this long for someone to try copyrighting their letter to try to prevent this...

To summarize the response letter quickly:

[Anonymous Coward]

Our associate is not liable for the opinion of others.

Your idea to threaten a lawsuit based in a country where our associate has no assets is laughable.

Your attempt to use copyright as a deterant was half-hearted and foolish, and if you think you can carry out that threat, then try it on us.

BRING IT ON, we'll do this in OUR house.

Fair use!

[indil]

Where does fair use come into play here (assuming this was in the U.S.)? You're allowed to copy another's works in part for criticism or parody. Aren't you covered as long as you only quote the relevant parts that illustrate that they're giant asshats and criticize them for it?

You can't copyright legal correspondence

[fishbowl]

Why can't this be copyrighted? Because it fails to license the defendant to do procedural things that would be required (providing copies for the court, distributing copies to his attorneys and among all persons who would be affected by a suit, etc.)

It would probably be judged to be (harmless and reversible) error on the part of the plaintiff. It's a claim that has a null effect on anything. You can write a perfectly legitimate demand letter, and in it, claim the earth is flat. The person receiving the demand letter, cannot choose not to comply with the legitimate demand, just because the earth is known to not be flat. The problem with the C&D in the article is on the order of this. On one hand, a C&D letter is just a letter. It is not a legal instrument, it's simply a letter. It may become evidence in a lawsuit that repeats its demands at some point, and that is its only value, that it establishes evidence that a party was notified of a grievance.

If a substantive claim of the letter was in error, (e.g., the defendant could show that he is not responsible for whatever damage is claimed), that's significant. If something unrelated is in error (e.g., the letter writer signed "Sincerely yours" when he wasn't sincere), that's not going to lead to any judicial action...

So the letter writer might enjoy reserving copyright on the letter, but it gains him nothing, and even if this letter is accepted as civil evidence, it establishes nothing about copyright. If the letter writer tried to act on the violation of the copyright, he would have a very hard time convincing a judge that this is reasonable. I would especially like to see the part where he explains that it should be entered into evidence but the court has no right to distribute it.

I don't think you understand the GPL.

[argent]

This part of your argument makes no sense to me. What does it refer to?

Think about a binary program, it is arguable that producing a binary program from a legally obtained copyrighted material does not violate copyright law regardless of the GPL because the copyrighted "expression" is never republished.

The GPL explicitly does not restrict what you can do with a binary you created from GPLed software UNLESS you do, in fact, republish it.

Whatever document you might be reading that actually claims to restrict anything but distribution, well, it's not the GPL.

You also seem to be confused about what fair use allows, and what a derivative work is.

I have to admit, though, that you're not the only one confused.

For example, I'm kind of confused as to what you think this has to do with copyright on cease-and-desist letters.

Re:I don't think you understand the GPL.

[mlwmohawk]

One should never start a discussion assuming someone is confused. While IANAL, I have taken a number of courses on law and have had my share of corporate intellectual property work over the years. I am not confused what so ever.

The "fair use" doctrine is not very well defined it is constantly being reevaluated by judges. My point was that as to what it "allows," no one can know on a very broad basis without a judicial decision or precedent.

As for derivative works, that is something interesting as well. Copyright only protects an expression of an idea, not the idea itself, that's why it is different from a patent. It can be argued that source code is the "expression" of the idea, and a compiled program is merely a synopsis or crux of the idea, a separate work.

The GPL may not be able to exceed the rights granted under copyright law.

Re:I don't think you understand the GPL.

[argent]

The "fair use" doctrine is not very well defined it is constantly being reevaluated by judges.

The envelope of what the fair use doctrine allows, however, is extremely narrow. The gray area is real, but it's around a much smaller part of the range of possibilities than you're implying... it certainly does not allow for unrestricted redistribution of a nontrivial copyrighted work.

It can be argued that source code is the "expression" of the idea, and a compiled program is merely a synopsis or crux of the idea, a separate work.

There is no creative work involved in creating a compiled program from the source code, therefore it's not a separate work. Hell, even if there was, it would still be a derived work, like a cover of a song. You would have to throw out too much existing law and reverse too many precedents, as well as find a judge who is unaware of the effect that such a decision would make on the software industry, that such an argument can not possibly be carried through in anything like the current legal environment.

The GPL may not be able to exceed the rights granted under copyright law.

The GPL is not an attempt to exceed those rights, so that point is moot.

I'm sorry that I accused you of being confused. It was the kindest interpretation I could cast on your argument, but since you insist I withdraw the accusation.

Re:I don't think you understand the GPL.

[mlwmohawk]

There is no creative work involved in creating a compiled program from the source code, therefore it's not a separate work. Hell, even if there was, it would still be a derived work, like a cover of a song. You would have to throw out too much existing law and reverse too many precedents, as well as find a judge who is unaware of the effect that such a decision would make on the software industry, that such an argument can not possibly be carried through in anything like the current legal environment.

I beg to differ, there is some creative work involved when compiling, but I'll skip the details about that. Let address what a derived work is. You mention a "cover" of a song, well that clearly is infringing as the lyrics remain intact.

In software compilation almost none of the original work remains in the compiled code with the exception of program strings. Is it much different than google parsing documents to words for indexing? If I read a book on algorithms, and I implement an algorithm from the book, I am not infringing on copyright. If the algorithm is patented, I may be infringing on the patent. If the compilation process is seen as removing the idea from the expression, it may reasonably be "fair use" of the published work.

Re:I don't think you understand the GPL.

[argent]

I beg to differ, there is some creative work involved when compiling, but I'll skip the details about that

No, no, elaborate. I wrote my first compiler in 1979 and I thought that after all this time I was pretty familiar with the process of mechanically translating a program from one form to another.

You mention a "cover" of a song, well that clearly is infringing as the lyrics remain intact.

There's ample case law supporting the tune itself being a copyrightable work, and for the argument that a faithful translation from a score, piano roll, MIDI file, or other "source code" into audio format, whether mechanically (as in a player piano, score-driven sequencer, or MIDI sequencer) or by human effort, makes the sounds themselves a derived work, and a recording of those sounds a derived work. There's no wriggle room here.

If I read a book on algorithms, and I implement an algorithm from the book, I am not infringing on copyright.

It would be interesting to see how that would apply where you were performing a faithful mechanical translation from one form to another, as I did when porting the RATFOR compiler from the book Software Tools to RSX-11 in 1982. The FORTRAN code I produced was hundreds of lines of code hand-translated from RATFOR, almost line for line and step for step the equivalent code... never in the past 30 years have I done anything like it. THAT is something that might be in the grey area between transcription and reference, but using an algorithm from a text book is rarely even that similar to the process of compilation.

Is it much different than google parsing documents to words for indexing?

Oh yes, very much so. An index is not a translation of the original work. One can not imagine an "English - Index" followed by "Index - English" that would produce results similar to decompilation, to transcription of music, or to translating a translated work to the original language.

If the compilation process is seen as removing the idea from the expression, it may reasonably be "fair use" of the published work.

Indeed, I have to admit that sentence in its entirety is true, but so is "If I was born on Mars, then I am the emperor of the universe".

Here's a relevant example:

[fishbowl]

Ok, here's an example:

You have a lease contract form that was purchased at a office supply store. That contract form is copyrighted by its publisher.

You and your tenant fill it out.

Now, are you not allowed to copy the filled out, executed contract so that you and your tenant each has a copy?

If you and the tenant enter a legal dispute, are you both forbidden from copying this document (which is a derivative work, your writing on a copyrighted form) and giving the copies to your lawyers or the court?

I do not think you will ever see a judgment that declares legal correspondence to be constrained by copyright to the degree that it actually forbids a party to the correspondence from sharing that correspondence. To assert this is to abridge a party's rights, which could have fatal consequences in a lawsuit situation.

The last thing you want to do as plaintiff in a lawsuit, is give a judge a reason to believe you have been unfair to the defendant with respect to his right to mount a defense to your claims. The reason you shouldn't pull a stunt like this "copyrighted letter" is simply that you don't want to give the defendant any place to stand where he can suggest you acted in bad faith. Even in a solid position, bad faith actions can cost your case.

My parent is wrong...

[snowgirl]

Reading further down, other people noted other points later in the FAQ...

That you do need to register a copyright before you sue... which strikes me a bit as odd, since otherwise you don't have to register a copyright at all. It all comes down to when you register your copyright, rather than whether you register your copyright.

Re:My parent is wrong...

[qzulla]

Perhaps you could quote the part that states this? I could not find it.

qz

science and arts

[wikinerd]

copyright exists to promote the sciences and the arts. a letter written by a lwyer does neither. therefore copyright ha sno meaning for it.

Copyright was meant to protect art and literature

[xyloplax]

Legal correspondence is neither art nor literature, though the US Copyright Office doesn't specifically prohibit it. I seriously doubt this would last 10 minutes in court. What Works Are Protected? Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: 1. literary works; 2. musical works, including any accompanying words 3. dramatic works, including any accompanying music 4. pantomimes and choreographic works 5. pictorial, graphic, and sculptural works 6. motion pictures and other audiovisual works 7. sound recordings 8. architectural works These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works." What Is Not Protected by Copyright? Several categories of material are generally not eligible for federal copyright protection. These include among others: * Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) * Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents * Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration * Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

my favorite

[sh3l1]

My favorite part was the "printed on recycled paper" part at the bottom.

suck my goat(se)

[Anonymous Coward]

my favorite scumbag letter is still this one. like the entire site was constructed as a response to the letter. -intimacy
it was almost a tie with Barbra Streisand. she is so hot. --intimacy

File an anti-SLAPP special motion to strike

[triclipse]

If some lawyer attempted to go after my client with this BS they would get an anti-SLAPP special motion to strike on their desk. My client would get his/her/its attorney's fees paid.

Such a motion is available in California and in other states as well.

Essentially, it is a way for the small guy to fight Strategic Lawsuits Against Public Participation (big companies trying to shut the little guy up by suing him) by giving other lawyers incentive to take the cases on contingency. If this shit happens to you, contact the EFF; they send out emails to lawyers across the country who may take your defense on contingency.

Mailbox EULA

[giminy]

"I'm sorry, but you clearly didn't read the EULA on my mailbox. Any unsolicited mail that comes in to my office via the post is owned by me, giving me exclusive rights to reproduce it."

Ties in nicely with my SMTP server, which actually does issue a notice that the email you are sending is subject to my terms and conditions.

Reid.out

Re:Mailbox EULA

[starfishsystems]

Nicely said.

When a party acts to put unsolicited material into my hands, I must reasonably conclude that they are granting me unconditional use of same.

Re:Mailbox EULA

[giminy]

Pretty much. Copyright is a contract, so when I *buy* a book or CD or whatever, I have really negotiated use of said product in compliance with US copyright law. Even if I win the same book or CD or whatever as a prize (or it is given to me as a gift), it is being given to me with an implicit dollar value and so invokes a contractual obligation. A cease and desist letter has no monetary value, though. At best, it can be covered by a memorandum of understanding, which I am free to violate without legal recourse. (And if it did have a contractual aspect to it, I would much prefer the cash than the letter!)

Reid

Re:Mailbox EULA

[starfishsystems]

My understanding is that a contract requires an offer, an acceptance, and the exchange of consideration. This definition is essentially unchanged from ancient times.

Your purchase of a book is a contract, because it meets this test. A gift is not a contract. The "cease and desist" letter is a gift.

Copyright is something else entirely, related to ownership of title in a creative work, under the terms of the Berne Convention or local law.

Whether it's a purchase or a gift, the author of a "cease and desist" letter has title to it. However, not every such work is subject to copyright. For example, advertizing and other promotional materials are excluded. But the strongest point is that copyright law explicitly permits fair use of a work "for purposes such as criticism." (15 USCS Section 107).

question

[Anonymous Coward]

if they are claiming that the letter is a copyright able piece, dose that mean they are trying to claim that it is a creative piece?
like a work of fiction? because i was under the impression that copyright was to protect art and the like, what am i missing here?

Disproven by their own website...

[JetScootr]

http://www.cybertriallawyer.com/copyright-infringement: "Copyright law protects original creative works, excluding purely functional work."
Well, that settles it. If they sued me for posting their threat, I'd motion for summary judgement. And court costs, since obviously they already know it's specious.

you must be new here.

[Anonymous Coward]

LOL

If you look closely at the letters wording...

[jskline]

If you look closely at the letters wording, you can definitely see a trend in this, and others that have been posted. The most glaring thing was the statement the attorney makes claiming the threat letter itself is copyright and that he reserves his rights by excluding you from posting it.

These and other such "threats" clearly demonstrate that they are making this crap up as they go to suit themselves and possibly their client. Obviously the person standing to make the most money out of this is the attorney himself and/or the law firm, and less obviously is his so-called plaintiff. This all is so bogus it isn't funny and it screams to call these bozo's to the carpet for their actions.

Re:PDF beware.

[ajs318]

It's not dangerous as long as you use something other than Adobe Reader to view it.

I am taking legal action against this forum

[overlook77]

for unjustly flagging copyrighted replies, comments, and story submissions of mine as "Offtopic" or "Rejected", respectively, thereby resulting in public humiliation and a Karma rating of 'Bad'. The aforementioned ratings were utterly false and without merit. I must insist that Slashdot and its readers, who share equal blame, restore my Karma to its previous state of 'Neutral' and refrain from future attacks on my character.

They can say whatever they want

[jgoemat]

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.

They can tell you that "by using our website, you agree to name your first-born child after one of our partners", but that doesn't mean you have to do it. However, it is a lie to say that it is a violation of their copyright. Copyright grants a monopoly on copying and distributing original creative works to the authors. There is no no monopoly on simply "viewing" a copyrighted work. By creating a public web page and providing it on a public server, they are copying the work and distributing the work to you over the internet. What law would they use to go after someone? The judge would laugh them out of court and award attorney fees to the defendant.

is this copyright misuse?

[wikinerd]

I am not a lawyer and I may not understand some concepts, but my personal opinion is that their claims regarding viewing HTML code to be a form of copyright misuse because a person using TELNET as a Web client would be unable to see their site without viewing their HTML code. Therefore, my opinion is that their attempts to restrict viewing their HTML code via their understanding of the copyright law places an unreasonable demand on Web users who for whatever reasons have or prefer to use TELNET. They can specify that their site is best viewed with an X browser, but using the law to make it illegal to use TELNET as a Web viewer is too much for me.