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]

     

Ssh!

[Anonymous Coward]

Don't tell Darl about this.

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

[David Gerard]

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

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

[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.)

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?

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: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.

*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*

[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.)