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

Does this also mean

[Travoltus]

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...

Re:not as important as summary makes out

[xk0der]

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!

Re:Turn the tables?

[TheVelvetFlamebait]

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.

Satire is still fair use:

[olddoc]

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.

Re:not as important as summary makes out

[TechForensics]

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.

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.