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."

Comments

FYI

[fred911]

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

Court did not rule on copyright issue

[nameer]

From the ruling :

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

All the court said is that the prima facie evidence exists to let the subpoena stand for the simple reason that the slimy law firm registered the copyright of the letter. However, the court acknowledges that the defendant has "valid arguments" on their claim that the letter cannot be copyrighted. The court simply says that the analysis of those claims is beyond the scope of determining to quash the subpoena, and the prima facie case is sufficient to let the subpoena stand. As I see it, the defendant will now have to go to court and challenge the copyright directly instead of the validity of the subpoena. Of course, this is /., and I am not a lawyer.

Re:not as important as summary makes out

[wealthychef]

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.

Re:With rulings like this...

[conlaw]

First off, let me state that I am an inactive (retired) lawyer so that nothing I say here is legal advice. However, I really enjoy researching a topic like this, so I'll share a few little bits of information I discovered from reading the U.S. Code and a few other publications from the Copyright Office (www.copyright.gov).

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.

Re:With rulings like this...

[DustyShadow]

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. Incorrect. Notice has not been required since March 1, 1989, the effective date of the Berne Convention Implementation Act of 1988. This is shown in 17 USC 401(a) where the word "shall" was changed to "may":

17 U.S.C. 401(a) General Provisions.-- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. There is still a notice requirement, however, for some works created or published before 1989.

Nice, short summary of what was really decided

[Fnord666]

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.

Re:With rulings like this...

[conlaw]

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.