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

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

[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

Copyright registration

[bnisonger]

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

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

[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

[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

[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

[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

[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

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.

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.

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.

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".

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:'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.

Re:*READ BEFORE POSTING PLEASE*

[drachenfyre]

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

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: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:*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.