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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."
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.
"The recipient of this takedown notice is hereby ordered to take this very take-down notice from your Web site immediately."
"The recipient of this takedown notice is hereby ordered to take down this very take-down notice from your Web site immediately."
Fixed it. Now it's good to go.
"Uh... yeah, Brain, but where are we going to find rubber pants our size?" --Pinky
Unfortunately, copyright in it's base form isn't negotiated on a case-by-case basis. If someone sends you an unsolicited copy of a copyrighted piece, whatever that may be, that doesn't give you the legal right to make new copies. So whether or not you asked to be sent the material in question has no bearing on the matter. Lastly, IANAL.
Contact Information from http://www.melaleuca.com/hr/display.cfm?m=1&p=12their website:
The above page also has a web-based form for contacting them.
Their website is http://www.melaleuca.com/
I do NOT endorse, in ANY WAY, the daily repeated visiting, or scripted downloading of content through the above website in order to rack up high service charges and/or cause the shut-down of their website, NOR do I endorse the sending of large quantities of copyrighted complaint letters to their electronic or physical location. I cannot be held responsible for what people do with this publicly provided contact information.
Cheers.
Indeed, it also a time limited monopoly not intended to last to the end of days, even though some American corporations tries to make it that way. One of the reason it is a time limited monopoly is in recognition of the fact that science and art is not done in a vacuum but builds upon work and ideas of others.
How is a cease and desist letter related in any way to "Science and useful Arts"?
It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Britney Spears is neither science nor an art; she's a person. Her music would fall under science; that it's bad music doesn't matter, since we don't want the government protecting or not protecting works based on their artistic taste.
Cooking is a useful art, and recipes can be patented if they meet the requirements of a patent. This does occur from time to time -- there's a patent for a peculiar kind of peanut butter and jelly sandwich, IIRC -- but often recipes lack novelty or nonobviousness, or the inventor doesn't bother getting a patent. The written expression of a recipe -- as opposed to the process for cooking that the recipe describes -- is copyrightable if sufficiently creative. But anyone could copy the process and reword it, and where the wording was not creative or original (e.g. "Pre-heat oven to 350 degrees") that wouldn't be protected at all. The difficulty in writing succinct, clear, copyrightable recipes is such that most people don't bother.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
That's exactly what is wrong with our legal system. Your arguments make perfect sense, the premises are valid, and yet the conclusion is unfair. If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself. That's just common sense. There is sometimes a tension between being a nation of laws and knowing when the law is insufficient to mete out justice. Lawyers and judges never understand that there needs to be some slop in the system and if the system won't provide it then people MUST create it by just working outside the system.
Currently hooked on AMP
The ruling that a letter can be copyrightable is nothing new.
In order to claim copyright in a work, the author must give the proper notice as required under Chapter 17, Section 401 of the US Code. This section requires that the work must contain either the word "copyright" or the (c) symbol, followed by the year of publication and the name of the entity claiming the copyright. If the letter published on the Public Citizen website is complete, this information is missing.
Even though Mr. Dozier's press release mentions all of the possible penalties for the infringement of his firm's copyright, they seem to have forgotten Chapter 17, Section 412 of the US Code. That section includes a rule that neither statutory damages nor attorneys fees are available remedies unless the entity claiming copyright has followed Section 407 which requires mandatory deposit of two copies of the work with the Copyright Office within three months after it was initially published. Since the letter was apparently sent on October 5, 2007, the time for this mandatory deposit ran out three weeks ago.
Having said all that, I'll agree that the rich and powerful seem to be using the law to stomp on the rights of the average citizen. However, I don't think that the answer is bloodshed; try contributing to groups like Public Citizen and the Electronic Frontier Foundation who are trying to protect our rights.
I don't believe using the Copyright symbols and registering with a government office is required for copyright protection anymore - it's automatic as soon as you put pen to paper (or push record, whatever) by 1989's Berne Convention (according to Wikipedia's article on Copyright.)
http://en.wikipedia.org/wiki/Copyright#Obtaining_and_enforcing_copyright
A FAQ on www.copyright.gov also mentions the automatic protection.
http://www.copyright.gov/help/faq/faq-general.html#mywork
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
Thanks to all of you who pointed out my error in failing to take the Berne Convention changes in my previous post. Having read the amended sections, it's now clear to me that the failure to give notice in the correct form does not deprive the author of "copyright protection." However, I didn't find anything that negates the rule set forth in Ch. 17, sec. 412, denying statutory damages and attorneys fees to a copyright holder who has not complied with the registration requirements.