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

not as important as summary makes out

[joss]

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.

Re:not as important as summary makes out

[Homology]

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.

But it surely will make the bullied thinking about even quoting pieces of the cease-and-desist-letter since who will decide what is fair use? Perhaps the bullied will be bullied with another cease-and-desist letter?

Re:not as important as summary makes out

[tomhudson]

Shakespeare had it right ...

The biggest impediment to justice is lawyers. Too often, even if you win, you lose, and the only real winners are the lawyers for both sides.

As for their copyright claim - screw that too - post the notices on a server outside the US - problem solved.

What next - a claim that a hold-up note or a written death threat is copyrighted? Or an oral death threat, or even a murder in front of a crowd - since it meets the "public performance" criteria?

Lawyers like to compare themselves to professionals like doctors or nurses - in polls, the public rates lawyers ethics and honesty closer to used-car salesmen, and lawyers have only themselves to blame.

You want justice? Fire your lawyer - paying a lawyer is, in most cases, like feeding a cockroach. It just encourages them. Argue your case yourself. You're fucking some lawyer out of $$$ (since you didn't hire them), and the other side can no longer use the "they'll settle out of court since it will be cheaper than litigating the case."

And before someone says "that doesn't work" - I'm doing it right now. Idiot ex trying to claim $70,000.00 from me, her lawyer "let it be known" that they'd like an offer to settle out of court for "just a few grand", and my response - in court, at the last hearing - was "Not a penny." I argued for a 2-day trial on the merits, and her lawyer started complaining about the additional burden a 2-day trial will be to his client (awww ... whe'll have to spend another $5k on top of what she's wasted already).

Trying to get people to "settle out of court" over bogus claims is just legalized blackmail. The sooner we all help each other exercise our rights to argue our own cases, the sooner bullshit like this ends.

Re:not as important as summary makes out

[AmericanInKiev]

This is also my thinking.

The penalty for "privatizing" a document is that it cannot be made part of a "Due Process" which the constitution requires to be open.
Only a judge can "Seal" official court documents.

If they want a "secret justice process" they should get a prior restraining order sealing the process, but they need meaningful cause.

This decision should be overturned. more specifically, the company should get a ruling that a "secret demand" is inconsistent with due process, and therefore constitutes an "unlawful threat".

The great tradition of law in the west is openness. If Rosa Parks cannot tell anyone she was thrown off a bus for sitting, there could be no Birmingham bus boycott.

In a very real sense, the attempt here is to throw someone off the bus, while avoiding the public outrage at the injustice.
This is the worst ruling I've heard of this morning.

AIK

From the judgement...

[Anonymous Coward]

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.

Re:From the judgement...

[S.O.B.]

From the U.S. Constitution:

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.

How is a cease and desist letter related in any way to "Science and useful Arts"?

I think that Idaho judge has smoked too many potatoes.

Politicians

[Nerdfest]

Of course, the vast majority of them are lawyers.

How does this promote the "useful arts"?

[jordandeamattson]

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