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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).
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.
... 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!
Yes, of course. Assuming that Swedish courts care one bit about US precedents.
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.
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.
Of course, the vast majority of them are lawyers.
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