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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."
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!
Can I like, not open the cease-and-desist letter and tell the judge that since I didn't open the letter so that I do not violate copyright? Reason being, I too write such letters, and since I didn't opened the letter, I have the right not to "cease-and-desist"? Since I can never know what is inside the letter, and I really do not want to know, so that my creativity and originality while writing such letter is not affected (corrupted?)? .. I'm exempted, am I?
Court orders and judgments too should be copyrighted, any other judge, if he/she is not creative enough to craft his own flowery words for the judgment should be tried for copy-right violations!
Therez light! : aHR0cDovL3hrMGRlci53b3JkcHJlc3MuY29t
It's only copyright if it's copied, not if there are coincidental similarities between two works. If you can prove that the cease and desist letters were copied off one of your 40, then I guess this lays the precedent. Anyway, even if I'm mistaken, the sword would cut the first way back at you, because if the field of cease and desist letters is as narrow as you think, chances are that many of your 40 cease and desist letters would be infringing on other previous letters.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
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.
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.
... 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
Simple solution - have them post the step-by-step of what they have to do, including the jurisdiction and the "gotcha", to help save others the same pain. I'll gladly host the information.
The lawyers are claiming rights specific to the DMCA - that doesn't hold under Berne. You can't "export" the DMCA to other countries that are limited to the Berne Convention.
You still can. This ruling only states that if such a letter is posted anonymously, there enough teeth in copyright law to require disclosure of the poster's identity. If there is a proper lawsuit subsequently filed, you are still entitled to a "fair use" defense, as well as a "free speech" defense, and whatever else.
The underlying concern is that someone can sue you for posting a cease-and-desist letter, not that they will necessarily win. But you can be sued for anything at any time, as there are virtually no checks against baseless lawsuits.
I was sued for defamation when I blogged that a photo published by a corporation belonged to me, and they used it without permission. In their lawsuit, they said it was really taken by "Michael Zubitskiy". Well, there is no such person. I was sued in Oct. of 2005, had a federal trial in Nov. 2007 (represented myself), and I'm currently waiting for the judge's verdict (it was a bench trial). In 2 years and 4 months, the courts have still not ruled that this non-existent person doesn't exist (there has never been any evidence he's real). They added claims against me for trademark infringement and unjust enrichment (I won on summary judgment). They further claimed allowing visitors to post critical comments on my website was "tortuous interference with prospective contractual relations", and despite the DMCA safe harbor this claim went to trial. I'm waiting for the court's ruling and while I assume I'll prevail the fact remains you can be sued for anything.
This is the system we have, and if you have the guts to exercise your rights in a meaningful way against others with more power than you, they may misuse the legal system to retaliate against you. This is not new, but we are seeing more if it as the internet has empowered people to exercise their free speech rights in meaningful ways. On one level, this increase in abusive (SLAPP) lawsuits shows people are finding their voice.
www.cgstock.com
Hi, I'm a U.S. lawyer and I agree with you. (How often have you heard that?)
Besides, there is an absolute safe harbor for persons wishing to post about scams online. Truth is a defense to libel. And for that matter, to slander per se. Just be sure what you post is the truth, and they can't touch you. They might sue, of course, but it would be the kind of case that could be dismissed on affidavits and summary judgment. And, with judicious use of Requests for Admission, you might even make the pay them cost of proving true things they failed to admit. It's speculative to say so, but you might even get attorneys' fees and sanctions for filing a frivolous lawsuit or pleading. (Don't trust this as legal advice, of course.)
The important teaching of this decision is that sites which ENCOURAGE the posting of "scams" rather than simply soliciting the posting of stories about the subject, be they good or bad, do meet the legal test for defamation. Perhaps this is how it should be; or you might think so if your small business were attacked with lies and attempts to mobilize the blogosphere.
Now before the negative mod points come whistling in like mortar rounds, let me say I'm all in favor of using the Net to expose scams, and doing so should be free from repercussions. But you know, that's the way it IS, right now. Just tell the truth and don't say "Company X is a sleaze, submit your stories to prove it". Is it much different, or less satisfactory, to say "In the interest of performing a public service for our readership, we invite you to post comments, good or bad, about the business practices of Company X"? Because you can do that. (Though only the foolish would rely on an internet post such as this one.)
And for God's sake, don't serve ads for competitors of Company X, or suggest your blog will dissipate into the blogosphere if you get paid. You CAN use the net for People Power with very few accommodations to law.
Those are my principles, and if you don't like them... well, I have others.
Whenever these discussions come up I always think of my beset friend who lives in Kentucky. Below is the text of an actual resolution submitted in their House of Representatives.
A RESOLUTION encouraging the purchase and vigorous use of the USS Louisville 688 VLS Class submarine.
WHEREAS, in the past few years the scourge of the casino riverboat has been an increasingly significant presence on the Ohio River; and
WHEREAS, the Ohio River borders the Commonwealth of Kentucky; and
WHEREAS, the siren song of payola issuing from the discordant calliopes of these gambling vessels has led thousands of Kentucky citizens to vast disappointment and woe; and
WHEREAS, no good can come to the citizens of Kentucky hypnotized from the siren song issuing from these casino riverboats, the engines of which are fired by the hard-earned dollars lost from Kentucky citizens;
NOW, THEREFORE,
Be it resolved by the House of Representatives of the General Assembly of the Commonwealth of Kentucky:
Section 1. The House of Representatives does hereby encourage the formation of the Kentucky Navy and subsequently immediately encourages the purchase and armament of one particularly effective submarine, namely, the USS Louisville 688 VLS Class Submarine, to patrol the portion of the Ohio River under the jurisdiction of the Commonwealth to engage and destroy any casino riverboats that the submarine may encounter.
Section 2. The House of Representatives does hereby authorize the notification of the casino riverboat consulate of this Resolution and impending whoopin' so that they may remove their casino vessels to friendlier waters.
I think I would vote for any bill or resolution that has the phrase "impending whoopin'" in it.
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