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Court Says You Can Copyright a Cease-And-Desist Letter
TechDirt has a follow up to a case they covered back in October where a law firm was trying to claim a copyright on the cease-and-desist letters they sent out. Public Citizen poked a number of holes in this claim and invited the lawyers to "try it." Well, unfortunately the lawyers decided to bite and what's more, they actually got a judge to buy it. The news was announced by the victorious lawyer who now claims he can sue anytime someone posts one of his cease-and-desist letters. "The copyrighting of cease-and-desist letters is an easy way for law firms to bully small companies who have committed no wrong, but who have no real recourse to fight back against an attempt to shut them up via legal threat. Until today, many companies who were being unfairly attacked by companies and law firms misusing cease-and-desist letters to prevent opinions from being stated, had a reasonable recourse to such attacks, and could draw attention to law firms that used such bullying tactics to mute any criticism."
The actual text maybe copyrightable, but one still has fair use, one can excerp bits and rewrite other parts. This ruling does not stop people drawing attention to the fac that they are being bullied. It's daft but its not fatal.
http://rareformnewmedia.com/
So does this sword cut two ways?
Can I send 40 different versions of cease and desist letters to the US Copyright office and then sue any law firm that uses one that looks a bit too similar to one of mine?
Is an infringing cease and desist letter still valid?
Is "Copyright Troll" going to be a new buzzphrase?
Methinks this ruling will open up cans of worms the likes of which have never been seen, especially once the model is applied to the hundreds of legal documents that are basically boilerplate versions of each other (think leases, EULAs, credit agreements, and divorce documents for starters).
You will both be hearing from my legal team, as I have in fact already copyrighted both first and second posts. Oddly enough, we skipped 3 and went straight to 5.
... can you copyright a gallon of petrol through the law firm's letterbox?
The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter...
That figures. Idaho potato rule: If they're big enough, they're old enough. It could only be less surprising if the ruling had originated in Utah.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Everyone should familiarize themselves with the judgement. It's pretty amazing. Here are some choice bits... oh, assuming the judge didn't copyright it. Fair use should apply.
To qualify for copyright protection, a work must be original to the author. Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 345 (1991). Original means that the work was independently created by the author and possesses some minimal degree of creativity.
Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?
If the cease and desist letter were in haiku form, maybe. If it were sung to music, perhaps. But if its purpose is strictly as a utility and legal document, then where is the creative component?
The required level of creativity is extremely low; the work must "possess some creative spark, 'no matter how crude, humble or obvious' it might be." Id. (internal citations omitted). Copyright protection does not extend to facts or ideas. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991).
So? What is that creative spark?
17 U.S.C. Section 102(b). 43SB asserts that the Sheppard Letter is essentially a work detailing a process for the owner of the Website to follow in taking down remarks made about Melaleuca and its CEO.
What is the creative component of "take this off your website?" If merely offering such a "process" is the creative spark, then might I suggest it is in the public domain? And if not, surely it is a derivative of the works of others...
Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?
I can't wait for people to issue takedown letters on takedown letters on takedown letters. In fact, I would like to now and forever establish as prior art (and creative spark) my work entitled the recursive cease-and-desist letter!
"The recipient of this takedown notice is hereby ordered to take this very take-down notice from your Web site immediately."
See, it really is creative expression: An expression of irony and disgust.
1) Scan it.
2) Blur 90% of the text.
3) Post it.
4) Build a headline from the nastiest sentence.
5) Decide whether you're going to fight or switch.
6) Move on.
and if you can't copyright it you can certainly patent it or make it a trademark or claim it is a trade secret. There's even people claiming they can copyright mere listings of ingredients these days.
How we know is more important than what we know.
If I send a nasty email to someone and declare it copyrighted, they can't distribute it?
I say that because of a recent story about a guy who sent a girl a mean email and she published it on her blog and he received death threats in response...
--- Grow a pair, liberals... stop letting the Republicans bully you!
Here's the C&D that was decisioned. They haven't managed to take this down. Then again, it's now part of the public record.
http://www.citizen.org/documents/directbuycd.pdf
09 F9 11 02 9D 74 E3 5B - D8 41 56 C5 63 56 88 C0 45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use". At some point, making copies is just making copies for losers who won't pay because they're too cheap. Sure, there are great cases with handicapped kids, but the folks I spoke with at Public Citizen seemed obsessed with finding some legal justification for how making 40,000 copies for your closest and most personal friends was some how "fair". It ain't gonna happen folks.
If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case. Not just the dreamers of the techno-utopia who believe that somehow everyone is going post all of their work for free and the farmers and carpenters will be so inspired that they'll just build us McMansions and fill the fridge with steaks.
"Uh... yeah, Brain, but where are we going to find rubber pants our size?" --Pinky
Is that they are arrested, their works taken as 'evidence', and then copywrited and sold by the police. They already do this but to south korean companies who buy the footage for $500 a pop (homemade poor too, maybe you should put that camera away).
... I think it was lost among some in law enforcement a long time ago.
Do some lawyers, and apparently some judges, even remember why copyrights exist anymore?
Copyrights are there to among other things let the copyright holder be credited for the work and benefit financially from the work through being an exclusive distributor of the work.
So a big WTF at this.
Beware: In C++, your friends can see your privates!
I wonder if the new 'copyright' holding lawyers haven't just opened up a can of worms for themselves. I don't know copyright law all that well but I can imagine a couple scenarios:
1) If they use my name and not just a character loosely based on me (whether their work is fiction or non-fiction), then don't they owe me a royalty? Or can they claim that since I run a website, I'm a public figure and they can report whatever they want?
2) If they make claims that are eventually proven false (or damage my reputation before that), can I sue for liable?
In either case I hope a new version of the MLA handbook comes out so I know how to cite Cease and Desist letters. Just wondering...
That judge must have had five double drinks at a power lunch before he came back and made that pants load of a ruling.
Now we just have to figure out how to get them to join the writers strike!!!
He is obviously a learned individual who reads Shakespeare!
Sir,
I represent Infinite monkeys Inc. As you may be aware our company has bean attempting to recreate the complete Works of Shakespeare.Unfortunately we are still several melenia away from the conclusion of this project.
However our research has turned up all variations on Cease-and-Desist letters. And therefor we claim copyright on all such works.
Yours
Lord High Peanut Counter
Wouldn't it be nice if schools got all the money they wanted and the army had to hold jumble sales for guns
As an aficionado and longtime aesthetic critic of the cease-and-desist oeuvre, I have only a few moments to offer my review of this stirring and emotionally riveting form of creative mastery.
In the work's opening, we are introduced to the main characters, along with two settings (Virginia and Arizona) and a modern time period to help orient the reader. I was particular moved by the bold, overly-large font that portrayed (to your humble reviewer) the confidence and professionalism of our protagonist, especially when contrasted with the smaller left-justified (bravo!) intro that followed (no spoilers here!). The pure wit and joy I experienced by the artist's inclusion of a (purely tongue-in-cheek, I assume) disclaimer that this artistic work is only intended "for negotiation and settlement purposes" is difficult to communicate, but suffice it to say that by the third or fourth paragraph I was dabbing tears of pure joy from my cheeks with a handkerchief. Kudos!
The backstory that followed was a bit dry for my taste, but it was over quickly and followed by a riveting bulletpointed list of accusations that had me on the edge of my seat.
My friends, I do not want to spoil any of the chills and surprises that await, but do not pass up on your chance to experience this instant classic-- that is, before it's followed by the inevitable movie version.
What this does is to mean that the guy being sued has either to give in or employ a lawyer at their usual rip off rates.
I have (unfortunately) had enough experience with these parasites, in my own case and helping other dads try to see their kids after divorce, and seen enough lawyers deliberately make things worse to prolong the case and so earn them more money. I sometimes regret not being religious because I would then be happy to know that lawyers would burn in hell.
There is good news. Using copyrighted works for court-type purposes has been deemed fair use by the courts, in the same way that you can use copyrighted works for parody. This means you can share copyrighted works with your lawyer, for example. Maybe, since so many people use random strangers from the internet as lawyers, people can still post cease-and-desist (C&D) letters on their blogs.
Perhaps it is only infringement to use the copyrighted C&D letters for their intended purpose, without a license. I can't imagine a court would rule posting a C&D letter on the internet as infringement, because:
a) it does not lessen the value of the letter. Most of those reading it would not have any intent of actually using it
b) it is not for profit
c) it is for critique purposes
c) it is for legal advise (as mentioned above)
Of course, like so many things, whether or not posting a C&D letter is infringement or not is up to the mystical whims of the courts, and after the fact too.
Write your own Choose Your Own Adventure. http://www.freegameengines.org/gamebook-engine/
Cite the letter.
as long as the law remains this way.
There's the law, then there's the spirit of the law. The spirit of the law is useless. That's why we more often than not put the f in front of law.
So now The Pirate Bay will be sued for copyright infringement of cease and desist notices? After all, they publish all such letters (with mocking replies) on their web site legal page.
In the parent, it says that copyrights does not extend to Facts.
Since the allegations of Copyright infringement is an alleged fact, it can be claimed that copyright doesn't extend to the letter. All other information, including the address of the lawyers sending the letter, are facts, and non-copyright.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
Don't post the actual letter. Post your version of it that makes fun of the letter.
Make it horrible: "We will send hit men to your home and torture your family to death"
If the law firm protests about your "satire" let them show the real letter to prove the satire is unfair.
Power tends to corrupt, and absolute power corrupts absolutely.
Hopefully this will cause more people to lose cases because they couldn't afford to make it to the courthouse.
poverty is not a crime.
Everyone publish every CDL you recieve. Would this stop the courts from enforcing copyright claims on CDL (an huge influx of such claims)? I am definately not a lawyer. Thank god.
I am very small, utmostly microscopic.
... copyright your name and contact info? Anyone you don't want contacting you would then be subject to legal action if they don't destroy their unauthorized copies. Their ability to continue further contact could be enough to prove they have not complied.
8==8 Bones 8==8
The victorious lawyer must be a regular slashdot reader.
Cease and Desits ©
Stupid shyster should remember that copyright lasts several years after death,but,if he should pass on from an accident like "sudden death",who will be left to sue the righteously pissed respondent.
IANAL and glad of it.
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
Profit?
I would write the lawyers and tell them if they want to protect their intellectual property, then they should make sure that the cease-and-desist letter never becomes part of the court record. Because if it ever does, I would totally put it up on my blogz, lolz.
FAQs are evil.
John W. Dozier, Jr., Esq., President of Dozier Internet Law, PC, was not surprised by the decision.
Of course he wasn't: it was in Idaho that this happened. The state that has more cows than people. I am not about to gasp anytime soon.
Meanwhile, the judge obviously has no idea whatsoever what copyright means or was devised for. I know you're in Idaho, but have an idea out there, moron. The intellectual property of the lawyer (assuming he has any) is not protected by this law. It is not in any way relevant to this law. And reading that article, I was seriously starting to get scared when the journalists in that incognito paper began using terms like "'free speech' groups" in actual quotes, like there was some sort of profound controversy over the matter at hand, and normal people like ourselves are suddenly part of a fringe mentality that embodies itself in organised "groups" of extremists. George f*cking Orwell, baby. You get an unsolicited letter in the mail threatening you, and you can't let other people know?
Very funny.
Hey everyone,
Just got a comment by a party known as "lucifron" saying: Any modification to "a named party's statement" before publishing it is "a whole lot worse than copyright violation" and something you "certainly _don't_ want to" do.
But I don't see anything wrong with quoting excerpts from a copyrighted text.
-SNPP
hear, hear.
Wouldn't you have to actually get the letter copyrighted? Just saying that you can copyright the letter doesn't make it automatically copyrighted, does it?
Just writing the letter makes it automatically copyrighted.
this gets overturned in a higher court.
No portion of this post may be rebroadcast without the express, written consent of Major League Baseball.
You send a guy dressed up like a shark to the victim's place of business (Knock-knock-knock. "Candygram"), and when he opens the door, deliver the C&D letter in song (Currently in the victim's choice of Country-Western, Rock and Roll, or Traditional Blues). Why, it's genius! A whole new business model in support of America's #1 service industry, Lawsuits. Think of the possibilities!
Now if I could just find that harmonica.
"My country, right or wrong; if right, to be kept right; and if wrong, to be set right." --Senator Carl Schurz (1872)
The judge might be over-ruled by a higher court, that takes into account that generic cease-and-desist letters have existed for many years, and the basic form is public-domain, and a copyrighted work is not supposed to be a major plagiarism of someone else's work. It's supposed to have a significant amount of original material in it. While modern DMCA cease-and-desist letters certainly fall within the period before copyright expires, they are mostly very likely to be plagiarisms of far older letters on other subjects.
http://www.spectacle.org/797/finkel.html Does not apply. . .
Go home, nobody loves you. .
- The Blog
Since I can not edit, the "Does not apply" was meant for the parent.
Go home, nobody loves you. .
- The Blog
This is not a decision approving the tactics of law firms that try to silence people that they sue (though it may have that temporary effect).
The only issue here was whether to quash the subpoena to identify the person who posted the C&D letter. All you have to show to support such a subpoena is a prima facie case. That means that you only have to show that you have met the initial elements of your claim. Meaning that they posted something and it was your copyrighted work.
The question of whether this is Fair Use (and I can't imagine that it wouldn't be) has not been decided. That's not part of the prima facie case of copyright infringement, rather, it is an affirmative defense that the defendant must raise and argue.
Really, the judge should have taken note of the First Amendment implications of all this and quashed the subpoena anyway.... I mean, really.
The Defendant will now have to litigate the case, but if he wins, the "precedent" will be just as persuasive, if not more.
The Marketing Department of Sirius Cybernetics Corporation is surely scrambling to maintain its position in line. There is so much competition these days!
...there is no recourse than to lose all respect for the law, lawyers, courts, and the legal system. It's time to have a revolution and kill all these fuckers! Yes, many innocents will die, but, so what.
Law in this country is becoming a weapon of the few (powerful) to be used against the many (average people). I say, "Fuck 'em all!"
Over-the-top Response Guy! Giving "Over-the-Top Responses" since 1970.
Instead of simply posting the entire unaltered content of a C&D letter and hoping for feedback, just break it apart into sections, and cite all the relevant quotations from it that apply (correctly crediting the source, of course), with appropriate filler in between quotations that makes the resultant work something (anything at all!) more than just a parroting of the letter. Even people with no artistic talent like myself could probably pull this off. Obviously, you can completely leave out things like the letterhead, and any auxiliary information in the C&D letter that does not contribute to its meaning or to whatever point you want to make in your resultant work. In the end, sure, you copied it, but it's not infringement because citing is fair use, and fair use is an exemption.
File under 'M' for 'Manic ranting'
The government of Bavaria, a state in Germany is the one who is behind this.
The name of Bavaria is "Freistaat Bayern" (Free State of Bavaria), so much for free.
Stasi is back?
Ministerium für Staatssicherheit
Ze kommandant told me to march zese inmates into ze shower... I vas doing mein job!
Correct me if I am wrong, but I thought that the bulk of U.S. law had always said that a letter or other written communication was always the property of the person who received it, not the sender. The act of delivery transfers ownership to the recipient. The theory is similar to the way that the owner of a house, rather than the architect who built it, has certain implicit rights to the design (like to right to photograph it, for instance), and the way that the owner of a physical painting is allowed to make reproductions of it, etc.
...En að Besta Sem Guð Hefur Skapað Er Nýr Dagur
It's not a huge deal - unless the innocent victim doesn't have the money to see the long process through. And even when the victim has plenty of money (e.g. SCO vs. IBM), it is a huge waste of time, money, and emotion.
I think actually, if someone sends a letter addressed to me I acquire ownership of whatever part of the content is addressed to me.
I did a little quick scanning on the net though and couldn't find support for this, -- but for some reason when I read this topic that is the first thought that popped up
if you think about this for a minute you see what I'm talking about is an essential characteristic of any message that is addressed personally to you
for example: I order a book from Amazon. The order arrives and I have the book and the invoice. I can't misuse the copyright on the book but the invoice -- is mine.
##US government works are uncopyrightable##
BUT.. Our govt can accept works from private parties that have been copyrighted, and enforce it brutally.
The VietNam Wall on the Mall the case in point. I was stopped from taking a picture, and don't you dare publish it.
Many other examples.
I suppose you'll sue me for copyright violation when I send a copy of the C&D letter to my lawyer?
If you disagree with me on social issues, then it's pretty clear that you are a narrow-minded bigot.
I write a book, you make, and distribute, illegal copies of that book. Your actions cost me X number of sales, so you have to compensate me for those damages. That makes sense.
I write a cease-and-desist letter, you make, and distribute, illegal copies of that letter. But you have not cost me any sales, so what are my damages?
Report it as SPAM to all of the SPAM db's
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
Cease and Desist! ©
Public Citizen should help them appeal this decision to a non-fascist superior judge. And when it's overturned, the original judge's record should be checked for other fascist, or just retarded, rulings. Those rulings should count against their promotions, raises and pensions. When there are enough overturns, they should have their judge robes torn up. And really serious ones should see them tried for obstruction of justice, if nothing else.
Judges are generally good deciders. But that lets the rest get a free pass. There should be feedback with teeth, just like the teeth the judges apply to the public.
--
make install -not war
The decision says that the person made out a prima facie case for copyright infringement under the DMCA for the issuance of a subpoena. Prima Facie is a very low standard. The actual decision doesn't address the copyrighting of letters, though there is probably no reason one could n't be copyrighted, and it doesn't address the issues of fair use, as least as far as the edited decision on the Dozier site shows.
. . .retarded Slashdot readers.
The writer of a letter does not "copyright a letter." The copyright is automatic, if it qualifies, which it clearly would if it's more than a few sentences long. This has been the law, almost everywhere in the world, for decades.
Copyright does not cover all possible uses of the protected material. Fair use includes things like reporting news, and educational purposes.
And in the end, this is utterly, completely, totally meaningless anyway. If you get a C&D letter, there are two possibilities: either the sender is willing to follow up with a lawsuit if you don't comply, or they're not. If they are, you have a serious problem, no matter what you do wit the C&D letter. If they aren't, they aren't going to sue you for publishing the C&D letter. Makes no difference at all.
If you admit the letter as evidence, isn't it then in the court record, and the Public Domain?
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
Quote the letter. Even lots and lots of it. Post it as a news article stating fact. That's fair use.
Or take chunks of the letter and make fun of them(shouldn't be hard): parody.
All this really stops is scanning the whole letter: style and all, and claiming it to be your own.
The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence
This is not correct. No statutory damages are due unless the copyright was registered. Further, real damages will be limited to damages due to the verbatim copying of the letter, not damages due to revealing its existence and contents both of which are clearly legal under the first amendment. As a practical matter, this means that the damages aren't likely to amount to much. If the judge said otherwise (and since none of the links seem to be to what the judge actually said, I can't tell) then the judge will be trivially overturned.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Fine. If C&D letters are copyrightable, then publicly posting them is fair use either because of their inherent newsworthiness or for the purposes of criticism. Mischief managed.
Don't worry, I have a patent on "method for the prevention of public disclosure of cease and desist letters" in which I describe the use of copyright notices on said letters. I am issuing a cease and desist letter to this lawyer, who is infringing on my patent. The only reason you have not heard of this latest development is that my cease and desist order to him was copyrighted.
Some drink at the fountain of knowledge. Others just gargle.
Of course, the vast majority of them are lawyers.
What's to stop the recipient of one of these letters from quoting from it for purposes of satire, review, criticism, and creating a derivative work by inserting their comments and responses within the body of the letter? All of these things are considered "fair use" and should be protected under existing law, and would not cause any violation of copyright.
What the asshole lawyers SHOULD be doing in order to be perfect assholes is to start each letter with an EULA-like clause, which states "By reading this letter, you signify your agreement not to publish this letter or show it to anyone not listed on the "To:" line. Once this is established, we won't even need courts anymore, because lawyers will be able to craft EULA-letters compelling people to do anything they want at all, with their consent granted the moment they open and read the letter. We'll finally have our perfect utopian society.
You see? You see? Your stupid minds! Stupid! Stupid!
Not to sound unkind, but you are reading the law ten years back: Berne Convention Implementation Act of 1988
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
Well, for all countries that have signed into the Berne Convention, copyright is automatic at creation.
Here is a nice, short summary of what was really decided by the judge in this case, which has almost nothing to do with what the linked article said was decided.
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
In another 70 years (or is it 95 now? Or 120? I can't keep track anymore...), the letter will fall into the public domain, and you can post it online then. (Maybe then it will even start turning up in those bargain bins at the dollar store...)
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
If you read the link in the Parent, you'll find that Dozier wanted to subpoena an anonymous internet poster but couldn't because the posts didn't trigger any DCMA provisions. Then sent him one of their patented (er, copyrighted) pompous huff and puff Cease and Desist letters. It got posted and--Shazaam--they now have evidence of copyright violation sufficient for a subpoena for the identity of the poster--their original intent all along. Dozier is an internet bully and an arrogant arse wipe. This post is my opinion, so don't even think about it, Dozier.
What if I pointed a webcam (with sufficient resolution) at the cease and desist letter and sent out a live stream. Would that still be violating the copyright?
The article mentions that it was a "confidential" document. I don't see how someone can send me something I never asked for and bind me automatically against my will into a confidentiality agreement. Unless maybe its the government and involves a legitimate state secret, but even that must provide some reasonable recourse.
Maybe if the streaming thing doesn't work, someone could start an organization that people would send the letters too and they could provide third party verification that it exists and what the general content is without reproducing or posting the precise "copyrighted" content. It would be like a book review. They could also display the "original works" in some kind of museum.
Unless they start claiming copyright on all discussion and descriptions of the content like the NFL does...
... that makes people lose respect for a general system that does actually have merit (when not abused).
I have it on good authority that John W. Dozier, Jr., Esq., President of Dozier Internet Law, is a pedophile, and often rapes animals when visiting his manwhore Ken Sheppard. (VP & General Council)
Furthermore, Melaleuca, Inc's CEO Frank L. VanderSloot knowingly sells products poisoned with mercury and AIDS to children. He also enjoys conspiring with known terrorists, and stealing money from grandmothers. Especially disabled ones, who are blind.
John, Ken, and Frank smoke in church, use leaded gasoline, huff gold paint, and often steal baby strollers from single Jewish mothers.
These facts are irrefutable, and also fully true, as I learned them from their toothless mothers who were over at my house blowing me, after they fought over who was going to be the star in the sequel to "Two Girls, One Cup" that their sons were filming with an illegal immigrant crew.
Also, they cheat at poker.
Until the 9th Circuit upholds this it is utterly non-binding everywhere, including Idaho and the same judge! Nobody except the litigants are bound by a decision of a District Court, it can be challenged repeatedly.
So, wake me up when it is on Appeal.
I think people publish the letters to gain public support, because they can't afford to go to court against the abusive copyright holders.
See? They get you coming AND going.
Blar.
Yes, this ruling is awful, but at the moment the only place it has any value as precedent is in the federal district court for the district of Idaho. The court of appeals for the district of Idaho is the 9th Circuit. Should the 9th circuit agree to hear the appeal and affirm the lower court's ruling, then this decision would become binding on those states within the 9th Circuit's jurisdiction (the west coast, Alaska, and Hawaii). Should the 9th Circuit reverse, in terms which explicitly dispose of the lower court's logic, then the opposite rule would govern those states.
why there is no manufacturing in the USA. I read a book a few years ago written by the founder of Sony Akio Morita and in his book Made in Japan he notes how extremely litigious the USA is compared to many other nations. My point is often people in the USA keep saying that manufacturing has left because of labour costs. My personal take on the matter is that a large part of that line of thought is BS. Take the ship building industry in Sth Korea, wages are higher in the ship building industry there than in the USA but they cant keep up with orders. Yes, the US legal system is partly responsible for chasing business off shore this killing manufacturing. Most countries do allow you to sue but they also make sure "it costs the person initiating the case" allot of money if it is a fishing trip ie they pay "everything" thus these types of cases are very rare unless they have allot of substance.
Convert the C&D to plain text and run diff against a stock C&D previously published by the same firm. Can they copyright that? I bet they can't. And if they start writing unique C&Ds to make it harder, then fine. Let the lawyers get a taste of their own medicine, namely that of being forced to do a lot of extra work for no good reason.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Once filed with a court, legal documents become part of the public domain and as such immune to copyright law. The thing to do then is to take the cease and desist letter, enter it into evidence in a court case, existant or otherwise, and then publish it as part of the discovery process.
Is it 5:30 yet?
Dear Attorney,
Thank you for submitting your creative work entitled "Cease and Desist Letter". Unfortunately, at this time we are not accepting submissions without appropriate literary representation.
For this reason your letter is being returned, unread. If in some future you have acquired the services of a literary agent, please have him or her contact us through appropriate channels so we may consider if we have interest in reviewing your work.
We apologize for the inconvenience, but as we may be working on a similar project, we are legally obligated to protect our creative work from possible future claims of infringement.
All the best, and good luck with your writing,
Me.
"Method for exterminating cockroaches"
but if attorneys are officers of the court (as I believe is recognized when they pass the bar), and if they deem something actionable at law, does not a letter stating that fact become, de facto, court property? In other words, if you want to sue me, you have to state the grounds for such and enter that into the public record in order to take action against me. How would a C&D letter be substantially different from that? It seems lawyers (as usual) want to have it both ways (they want YOUR money and MY money as well as theirs). OK that means they want it all three ways, technically. Coincidentally, as I walked in the door at home on Thursday, my 12-year old asked me how to spell 'attorney'. I said: L-I-A-R. It took him about 30 seconds to get it and now he won't leave it alone.
Then it becomes PUBLIC DOMAIN, and the Copyright is dead.
Simple solution to an otherwise ugly problem.
--E--
It is clear this judge is failing to consider the framers intent in giving the Federal Government the power (one of its enumerated powers) to pass copyright and patent law:
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
Constitution of the United States of America
Article 1, Section 8
The question I would pose to the appeals court would be how does allowing someone to copyright a cease and desist letter lead to the progress of science and useful arts?
The clear answer is it does not.
This should be the challenge to this decision.
Cheers -
Jordan
just BitTorrent the C&D instead of hosting it.
Comment removed based on user account deletion
So now big companies can prevent you from drawing public attention to their behavior by stopping your ability to disseminate the content of your legal correspondences. Shameful.
The government could already prevent you from drawing public attention to their activities too. That was covered in the Patriot Act.
So i guess they got their bases covered finally.
Now that the letters are copyrighted, does it means that we lose the rights to read the letters say without paying 19.90 to read it?
I'd actually like to read the judge's ruling instead of people summarising Dozier's crowing about it!
Start a happiness pandemic
I'm the guy that got the takedown letter, scanned and posted it, etc. I *am* d2 at 43rdstateblues. Sorry I didn't respond earlier: I took my daughters skiing and just noticed the slashdot article while I waited for the wootage.
/. got the title wrong, this does suggest that Dozier's a propagandizing twit. As others have posted in comments, he's claiming far more than ever happened. Judge Mikel Williams merely ruled (more like admitted) that by having filed for copyright, Melaleuca met the minimum standard for having the case be heard.
... well, I've taken to calling it a 'Fight club' concept. How weird it'll be if I can get sued for merely documenting that Melaleuca threatened to sue me.
Let's start with the important part: slashdot's title is wrong. The court didn't say anything of the sort. The judge that heard our motion to quash Melaleuca's subpoena merely ruled that, by *FILING* with the copyright office, the plaintiff had made a prima facie case for copyright. Questions of fair use or other copyrightability questions were put off as fodder for a lawsuit's hearing itself.
While no one regular to slashdot is shocked that
Melaleuca merely *claims* copyright on the takedown letter. No court ever affirmed this claim because Melaleuca didn't go the next step after their prelitigation supboena they served on me.
A subpoena without a lawsuit... WHA?!:
In my book, the disturbing aspect of this case is the DMCA's 'prelitigation subpoena' powers: One can use the DMCA to mine for information without ever filing suit, and a real rat bastard could make a claim and use DMCA's subpoena power without even intending to file a copyright lawsuit. That 'fishing trip' seems to have been the goal here, since they'd tried to ferret out an uninvolved user that calls themself 'Tom Paine' with this subpoena. And Dozier neglects to mention that Melaleuca got *spanked* on that attempt. Judge denied that part.
Can a takedown be copyrighted?
The most *interesting* aspect of this case would be pursuing to the end whether a takedown can be copyrightable. Aside from the absurdity (how much resale/reprint value is there for a letter to some nobody like me?), fair use should be all over this. If you want to help me out, nudge the EFF or any other public-interest law group into taking this question to a firm answer. I can't afford to fight this alone. Pre-litigation subpoena power is creepy. Saying that a few paragraphs of legally precise language isn't word-by-word critical enough to outweigh copyright is
When Melaleuca lost the subpoena, that is when 'Tom Paine' was blocked from them, Melaleuca's attorney even made a last-ditch effort via a threatening letter that I'd better give everything up because if they sued and won I'd then owe for their fees.
What's the status now?
Since that time, Melaleuca's dropped the issue. No actual lawsuit was filed. The takedown letter remains worthless, if you ask me. They know this. There was no damage. There is countless fair use allowance for this. Again, Dozier's being absurd to conflate this with his pet projects.
What else? Yeah, Idaho really is this backward sometimes. For an example, last season, Melaleuca agressively lobbied to create a 'NonCompete' law so draconian it'd drive me (a 4th generation Idahoan) out of state. Reason? Likely the same reason they're pissed at us: the VP that had been groomed to take the company reins left the company with several critical researchers and started a competing firm. That led to the noncompete law and a lawsuit. The lawsuit had shown up in 'Tom Paine's rumors repeatedly on our site. They probably think Tom's an insider and are trying to get Tom's identity to silence him directly. Buncha control freaks.
One ironic thought: I didn't log in to post this under my slashID because here on slashdlot, I *AM* an anonymous coward. So, I'm posting this AC because I'm not willing to giv
First off, i loathe lawyers, politicians, copyright and the like. That said, consider this:
/devils
That C&D letter is, very likely, a form letter that the law firm created at some point. They put the time and effort into getting it jsut right, vetted it, and now it's their 'fill in the blanks' where they put in a few bits and pieces to customize it but otherwise it's already written. If you want a more specific example (don't flame, it's just an easy one that comes to mind): the MAFIAA and their "settlement" letters. I'd put money on the fact that they change the name, IP address and some minute information but it's otherwise 10ish pages of the same BS every time.
That's a work created by a talented professional (though i'd argue both talented and professional outside of this posting) and just like a news article, etc. would be copyrightable. I can't take that C&D letter and throw my law firm's name on it and re-use it, can I? No.
I'm quite sure this is just another 'crying wolf' situation. Either a higher court will dismiss with prejudice, overturn, or it'll get thrown back at the "copyright" holder if they every try to test this. Going further, this might give a bit more power to 'reasonable use'. It's REASONABLE to make legal documents public. I know the first catch Evil Lawfirm (tm) will try is to throw out reasonable use on the basis that xyz website hosting the 'offending document' has banner adds which generate money and therefore enforcement of their copyright to prevent others from earning profit form a work that's not theirs...
Yet another situation where laws (and copyright in particular) have become so complicated, twisted, complex and broad that there is no reasonable answer. WTB sanity check. PST.
You can get rich if you own a politician, but you have to be rich to buy one in the first place.
The US District Court for the District of Idaho...
One district court decision does not a nationwide judicial consensus make. Every time a bad ruling comes down in a federal district court, it does not mean that the entire justice system is screwed up, or that the final word has been said about the issue in question.
Read the EFF's Fair Use FAQ
when you aren't allowed to let the public know?
PS If I were a defendant of this, I'd tell the judge that since this ruling is copyrighted too and is a derivative of MY input into the "creative process" and "general knowledge" then I need to give permission for such derivative to be made and/or distributed.
If laws have to be specific and not biased or vague, why cannot they be a psuedo code/flow charts... rather than stupid archaic
fucked up english that would not even get a 1% in an english exam.
It appears to me that both the law is written in the wrong language and its as buggy as win95 with no patches.
Liberty freedom are no1, not dicks in suits.
Which is what you consider "science" to mean in the original document. Therefore their name and address IS importand, unique and is an improvement to "science" as you've defined it.
Just their name? A fact. Their address? Another fact. Together? Creative.
If not, why is
You done wrong (a fact)*, what you can do about it (a fact)* and what'll happen if you don't (a fact)* copyrightable when combined?
* Note: If you didn't do wrong, the whole document is wrong, so it's either a fact or the C&D is irrelevant. If what you can do about it is wrong (i.e. not a fact), the C&D is asking for redress they cannot ask for legally. If the stated consequences are not available for this issue (not a fact) then the C&D is a threatening letter.
Let him tack on defamation or libel charges to the copyright infringement. All he needs to do is convince a likely sympathetic judge that your satire could be read as being a factual account and bam, you have per se libel.
"Per se" is libel which, unlike your garden variety libel, is so obviously damaging that one does not need to prove one has sustained economic damage as a result of the libel to get damages awarded to you. Alleging criminal conduct in the course of one's professional affairs is per-se libel in many American states. This will put your lawyer in an awkward position, as the very best defense against libel, even better than truth (which can be, as a tactical matter, hard to prove), is "Eh, so what, you didn't suffer any damage as a result of the statement". Per se libel means you don't have that defense, and thus the inquiry is going to focus on a) whether you actually said what you said (that won't take a minute to resolve) and then b) exactly how much it is going to cost you, which will range from "lots" to "oh God".
Help poke pirates in the eyepatch, arr.
We all stood by when the 1998 DMCA repealed the first amendment. We all stood around and complained (but not loudly enough to gt us in trouble at work) as law after law made it illegal to speak.
SHUT UP!!! IT'S OVER!!!
We're just waiting for the chance to shoot the bastards at this point.
Andy Out!
A legal notice by a lawyer is public domain due to the fact that it must pass public scrutiny of a public court system ( unless such a legal notice from the federal government AND pertains to national security). Any physical copy a legal notice passes ownership of that copy to the intended recipient ( U.S. mail code requires this, common commerical code requires/implies this under the pigeon hole rule). U.S. copyright law allows fair usage of any material for research and public debate. While the U.S. copyright law protect is the entire legal brief from commerical usage ( e.g. another lawyer using the entire document for his own use) it cannot protect the essense of the legal brief ( e.g. another lawyer writing a legal brief similar but not exactly like it) for being reused for another similar case.
The copyright can also protect the entire legal brief from being used as part of an entertainment vehicle (e.g. a serious for-profit hollywood account of the lawyer's case) but cannot protect the entire legal brief from being parodied in a comedy for-profit hollywood account of the lawyer's case. However, once the lawyer have filed a lawsuit with respect to that legal notice, the court - under request by the lawyer or otherwise - can put a restraining order for the release of that legal notice if the court feels that public display of that legal notice might affect the defendants or plaintiffs chances of a fair trial -however, until a lawsuit has been filed the legal notice can be displayed in public and once the document has been in the eye of the public for some time - the courts have no reason to put a restraining order since the cat is out of the bag ( the cows are already out of the barn).
Back in the CueCat days most of /. agreed that you could do with it as you wish, despite a license stating otherwise. There is no commercial value to a C&D so a book metaphor doesn't work either.
You're absolutely correct on all of this, with one minor detail:
Melaleuca (plaintiffs) hasn't filed a copyright suit. This is one negative side-effect of the DMCA's unique pre-litigation subpoena power: an unscrupulous party could contrive a copyright issue, then these subpoenas without ever intending to file suit.
Thanks for your attention to this.
Melaleuca - 43sb Lawsuit FAQ
Quick Question - There seems to me to be an inherent illegality here, maybe someone can explain why I'm wrong. If I'm not wrong, maybe someone can file a complaint with the copyright office? As a violation of federal law and a matter of defrauding the court, it seems to me that if this chain of logic holds, they could be disbarred for doing this.
As I understand it,
A) A lawyer, issuing a Cease and Desist letter, is operating as an Officer of the court;
I don't know that I'm right on this, but it seems to be implied in everything I can find on it. Doesn't mean I'm right.
B) An Officer of the court is also an Officer of the U.S. Government:
Again, I'm not sure I'm right, but everything I can find referencing this in the law seems to indicate that yes, these are interchangeable terms.
C) Documents created by people acting as Officers of the U.S. Government are not copyrightable.
http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_101.html
"A "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of that person's official duties."
http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_105.html
"Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
D) If A --> B --> C, it seems to me submitting a Cease and Desist letter for copyright is in fact defrauding the federal government. http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/5/sections/section_506.html
"(e) False Representation. - Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500."
Presenting that copyright to the court would in turn be fraud of the court.
Am I completely off base on this?
Pug
An Invisible Entity of Vast Power whose existence must be taken on faith alone: Liberal Media
Here's a potentially interesting take on this by an actual law professor who actually read the court's actual decision.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
I'd like to copyright a court verdict. Specifically, I want to copyright the process of declaring a defendant guilty when the RIAA/MPAA are the plaintiffs. Every time that specific ingredient mix occurs in a courtroom, I want royalties paid to ME, because I'm the asshole who copyrighted it.
Seriously, this is bullshit.
-Billco, Fnarg.com