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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).
Don't tell Darl about this.
How to get bad press: http://farmersreallysucks.com/editorialtakedown1.shtml
How to get *good* press: http://farmersreallysucks.com/editorialgetafirstlife.shtml
-nB
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There is no registration or notice requirement anymore to assert copyright.
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).
Mr. Hu is not a ninja.
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.
"Don't meddle in the affairs of a patent dragon, for thou art tasty and good with ketchup." ~ohcrapitssteve
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?
My work here is dung.
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
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.
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.
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?
I prefer Flambe as apposed flamebait.
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".
--
$tar -xvf
... 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".
Real Daleks don't climb stairs - they level the building.
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...
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.
-fb Everything not expressly forbidden is now mandatory.
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.
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.
No Inflation Taxation without Representation