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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).
You will both be hearing from my legal team, as I have in fact already copyrighted both first and second posts. Oddly enough, we skipped 3 and went straight to 5.
... can you copyright a gallon of petrol through the law firm's letterbox?
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.
and if you can't copyright it you can certainly patent it or make it a trademark or claim it is a trade secret. There's even people claiming they can copyright mere listings of ingredients these days.
How we know is more important than what we know.
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!
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
09 F9 11 02 9D 74 E3 5B - D8 41 56 C5 63 56 88 C0 45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use". At some point, making copies is just making copies for losers who won't pay because they're too cheap. Sure, there are great cases with handicapped kids, but the folks I spoke with at Public Citizen seemed obsessed with finding some legal justification for how making 40,000 copies for your closest and most personal friends was some how "fair". It ain't gonna happen folks.
If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case. Not just the dreamers of the techno-utopia who believe that somehow everyone is going post all of their work for free and the farmers and carpenters will be so inspired that they'll just build us McMansions and fill the fridge with steaks.
"Uh... yeah, Brain, but where are we going to find rubber pants our size?" --Pinky
... 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!
Sir,
I represent Infinite monkeys Inc. As you may be aware our company has bean attempting to recreate the complete Works of Shakespeare.Unfortunately we are still several melenia away from the conclusion of this project.
However our research has turned up all variations on Cease-and-Desist letters. And therefor we claim copyright on all such works.
Yours
Lord High Peanut Counter
Wouldn't it be nice if schools got all the money they wanted and the army had to hold jumble sales for guns
As an aficionado and longtime aesthetic critic of the cease-and-desist oeuvre, I have only a few moments to offer my review of this stirring and emotionally riveting form of creative mastery.
In the work's opening, we are introduced to the main characters, along with two settings (Virginia and Arizona) and a modern time period to help orient the reader. I was particular moved by the bold, overly-large font that portrayed (to your humble reviewer) the confidence and professionalism of our protagonist, especially when contrasted with the smaller left-justified (bravo!) intro that followed (no spoilers here!). The pure wit and joy I experienced by the artist's inclusion of a (purely tongue-in-cheek, I assume) disclaimer that this artistic work is only intended "for negotiation and settlement purposes" is difficult to communicate, but suffice it to say that by the third or fourth paragraph I was dabbing tears of pure joy from my cheeks with a handkerchief. Kudos!
The backstory that followed was a bit dry for my taste, but it was over quickly and followed by a riveting bulletpointed list of accusations that had me on the edge of my seat.
My friends, I do not want to spoil any of the chills and surprises that await, but do not pass up on your chance to experience this instant classic-- that is, before it's followed by the inevitable movie version.
What this does is to mean that the guy being sued has either to give in or employ a lawyer at their usual rip off rates.
I have (unfortunately) had enough experience with these parasites, in my own case and helping other dads try to see their kids after divorce, and seen enough lawyers deliberately make things worse to prolong the case and so earn them more money. I sometimes regret not being religious because I would then be happy to know that lawyers would burn in hell.
There is good news. Using copyrighted works for court-type purposes has been deemed fair use by the courts, in the same way that you can use copyrighted works for parody. This means you can share copyrighted works with your lawyer, for example. Maybe, since so many people use random strangers from the internet as lawyers, people can still post cease-and-desist (C&D) letters on their blogs.
Perhaps it is only infringement to use the copyrighted C&D letters for their intended purpose, without a license. I can't imagine a court would rule posting a C&D letter on the internet as infringement, because:
a) it does not lessen the value of the letter. Most of those reading it would not have any intent of actually using it
b) it is not for profit
c) it is for critique purposes
c) it is for legal advise (as mentioned above)
Of course, like so many things, whether or not posting a C&D letter is infringement or not is up to the mystical whims of the courts, and after the fact too.
Write your own Choose Your Own Adventure. http://www.freegameengines.org/gamebook-engine/
Cite the letter.
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.
In the parent, it says that copyrights does not extend to Facts.
Since the allegations of Copyright infringement is an alleged fact, it can be claimed that copyright doesn't extend to the letter. All other information, including the address of the lawyers sending the letter, are facts, and non-copyright.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
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.
Everyone publish every CDL you recieve. Would this stop the courts from enforcing copyright claims on CDL (an huge influx of such claims)? I am definately not a lawyer. Thank god.
I am very small, utmostly microscopic.
... 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
The victorious lawyer must be a regular slashdot reader.
Stupid shyster should remember that copyright lasts several years after death,but,if he should pass on from an accident like "sudden death",who will be left to sue the righteously pissed respondent.
IANAL and glad of it.
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
I would write the lawyers and tell them if they want to protect their intellectual property, then they should make sure that the cease-and-desist letter never becomes part of the court record. Because if it ever does, I would totally put it up on my blogz, lolz.
FAQs are evil.
John W. Dozier, Jr., Esq., President of Dozier Internet Law, PC, was not surprised by the decision.
Of course he wasn't: it was in Idaho that this happened. The state that has more cows than people. I am not about to gasp anytime soon.
Meanwhile, the judge obviously has no idea whatsoever what copyright means or was devised for. I know you're in Idaho, but have an idea out there, moron. The intellectual property of the lawyer (assuming he has any) is not protected by this law. It is not in any way relevant to this law. And reading that article, I was seriously starting to get scared when the journalists in that incognito paper began using terms like "'free speech' groups" in actual quotes, like there was some sort of profound controversy over the matter at hand, and normal people like ourselves are suddenly part of a fringe mentality that embodies itself in organised "groups" of extremists. George f*cking Orwell, baby. You get an unsolicited letter in the mail threatening you, and you can't let other people know?
Very funny.
Hey everyone,
Just got a comment by a party known as "lucifron" saying: Any modification to "a named party's statement" before publishing it is "a whole lot worse than copyright violation" and something you "certainly _don't_ want to" do.
But I don't see anything wrong with quoting excerpts from a copyrighted text.
-SNPP
Wouldn't you have to actually get the letter copyrighted? Just saying that you can copyright the letter doesn't make it automatically copyrighted, does it?
this gets overturned in a higher court.
No portion of this post may be rebroadcast without the express, written consent of Major League Baseball.
You send a guy dressed up like a shark to the victim's place of business (Knock-knock-knock. "Candygram"), and when he opens the door, deliver the C&D letter in song (Currently in the victim's choice of Country-Western, Rock and Roll, or Traditional Blues). Why, it's genius! A whole new business model in support of America's #1 service industry, Lawsuits. Think of the possibilities!
Now if I could just find that harmonica.
"My country, right or wrong; if right, to be kept right; and if wrong, to be set right." --Senator Carl Schurz (1872)
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.
http://www.spectacle.org/797/finkel.html Does not apply. . .
Go home, nobody loves you. .
- The Blog
Since I can not edit, the "Does not apply" was meant for the parent.
Go home, nobody loves you. .
- The Blog
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.
Instead of simply posting the entire unaltered content of a C&D letter and hoping for feedback, just break it apart into sections, and cite all the relevant quotations from it that apply (correctly crediting the source, of course), with appropriate filler in between quotations that makes the resultant work something (anything at all!) more than just a parroting of the letter. Even people with no artistic talent like myself could probably pull this off. Obviously, you can completely leave out things like the letterhead, and any auxiliary information in the C&D letter that does not contribute to its meaning or to whatever point you want to make in your resultant work. In the end, sure, you copied it, but it's not infringement because citing is fair use, and fair use is an exemption.
File under 'M' for 'Manic ranting'
Correct me if I am wrong, but I thought that the bulk of U.S. law had always said that a letter or other written communication was always the property of the person who received it, not the sender. The act of delivery transfers ownership to the recipient. The theory is similar to the way that the owner of a house, rather than the architect who built it, has certain implicit rights to the design (like to right to photograph it, for instance), and the way that the owner of a physical painting is allowed to make reproductions of it, etc.
...En að Besta Sem Guð Hefur Skapað Er Nýr Dagur
It's not a huge deal - unless the innocent victim doesn't have the money to see the long process through. And even when the victim has plenty of money (e.g. SCO vs. IBM), it is a huge waste of time, money, and emotion.
I suppose you'll sue me for copyright violation when I send a copy of the C&D letter to my lawyer?
If you disagree with me on social issues, then it's pretty clear that you are a narrow-minded bigot.
I write a book, you make, and distribute, illegal copies of that book. Your actions cost me X number of sales, so you have to compensate me for those damages. That makes sense.
I write a cease-and-desist letter, you make, and distribute, illegal copies of that letter. But you have not cost me any sales, so what are my damages?
Report it as SPAM to all of the SPAM db's
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
Public Citizen should help them appeal this decision to a non-fascist superior judge. And when it's overturned, the original judge's record should be checked for other fascist, or just retarded, rulings. Those rulings should count against their promotions, raises and pensions. When there are enough overturns, they should have their judge robes torn up. And really serious ones should see them tried for obstruction of justice, if nothing else.
Judges are generally good deciders. But that lets the rest get a free pass. There should be feedback with teeth, just like the teeth the judges apply to the public.
--
make install -not war
The decision says that the person made out a prima facie case for copyright infringement under the DMCA for the issuance of a subpoena. Prima Facie is a very low standard. The actual decision doesn't address the copyrighting of letters, though there is probably no reason one could n't be copyrighted, and it doesn't address the issues of fair use, as least as far as the edited decision on the Dozier site shows.
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.
. . .retarded Slashdot readers.
The writer of a letter does not "copyright a letter." The copyright is automatic, if it qualifies, which it clearly would if it's more than a few sentences long. This has been the law, almost everywhere in the world, for decades.
Copyright does not cover all possible uses of the protected material. Fair use includes things like reporting news, and educational purposes.
And in the end, this is utterly, completely, totally meaningless anyway. If you get a C&D letter, there are two possibilities: either the sender is willing to follow up with a lawsuit if you don't comply, or they're not. If they are, you have a serious problem, no matter what you do wit the C&D letter. If they aren't, they aren't going to sue you for publishing the C&D letter. Makes no difference at all.
If you admit the letter as evidence, isn't it then in the court record, and the Public Domain?
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
Quote the letter. Even lots and lots of it. Post it as a news article stating fact. That's fair use.
Or take chunks of the letter and make fun of them(shouldn't be hard): parody.
All this really stops is scanning the whole letter: style and all, and claiming it to be your own.
The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence
This is not correct. No statutory damages are due unless the copyright was registered. Further, real damages will be limited to damages due to the verbatim copying of the letter, not damages due to revealing its existence and contents both of which are clearly legal under the first amendment. As a practical matter, this means that the damages aren't likely to amount to much. If the judge said otherwise (and since none of the links seem to be to what the judge actually said, I can't tell) then the judge will be trivially overturned.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Fine. If C&D letters are copyrightable, then publicly posting them is fair use either because of their inherent newsworthiness or for the purposes of criticism. Mischief managed.
Don't worry, I have a patent on "method for the prevention of public disclosure of cease and desist letters" in which I describe the use of copyright notices on said letters. I am issuing a cease and desist letter to this lawyer, who is infringing on my patent. The only reason you have not heard of this latest development is that my cease and desist order to him was copyrighted.
Some drink at the fountain of knowledge. Others just gargle.
"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."
Your research appears to be somewhat dated. I believe it was in 1989 that the U.S. amended the 1976 Copyright Act to be in line with other Berne Convention signatory countries in no longer requiring the copyright notice. If I recall correctly, there are now only 1 or 2 countries in the world that still require the notice. In all other countries, including the U.S., common law copyright applies automatically the moment a work has been "fixed" (ie. recorded in some form, like writing it down, in the case of a letter).
"...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."
I'm not aware of the details of that section, so it's possible that you're correct in that there's restrictions on the available damages when the copyright is unregistered. However, an unregistered copyright is still a copyright, so it would seem to me that there is still the option of other damages being awarded (punitive damages? compensatory damages? IANAL, so perhaps you have a better idea).
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
May I add to this;....
Even if he puts the copyright mark on the document, it becomes public notice information as it's required if I remember; as a prerequisite document to the actual filing a formal complaint in court, and asking for a summons and subsequent trial.
Then; if this happens, all of the particular documentation relevant to the case are public information and this rule of copyright can be negated... Correct?
This sounds to me as though we have another corrupt and dirty lawyer who is possibly looking for the "cash cow" and believes he or she has found it.
All content in this message is copyright (c) 2008. All rights reserved. RIAA is prohibited here.
Of course, the vast majority of them are lawyers.
What's to stop the recipient of one of these letters from quoting from it for purposes of satire, review, criticism, and creating a derivative work by inserting their comments and responses within the body of the letter? All of these things are considered "fair use" and should be protected under existing law, and would not cause any violation of copyright.
What the asshole lawyers SHOULD be doing in order to be perfect assholes is to start each letter with an EULA-like clause, which states "By reading this letter, you signify your agreement not to publish this letter or show it to anyone not listed on the "To:" line. Once this is established, we won't even need courts anymore, because lawyers will be able to craft EULA-letters compelling people to do anything they want at all, with their consent granted the moment they open and read the letter. We'll finally have our perfect utopian society.
You see? You see? Your stupid minds! Stupid! Stupid!
Not to sound unkind, but you are reading the law ten years back: Berne Convention Implementation Act of 1988
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
I don't believe using the Copyright symbols and registering with a government office is required for copyright protection anymore - it's automatic as soon as you put pen to paper (or push record, whatever) by 1989's Berne Convention (according to Wikipedia's article on Copyright.)
http://en.wikipedia.org/wiki/Copyright#Obtaining_and_enforcing_copyright
A FAQ on www.copyright.gov also mentions the automatic protection.
http://www.copyright.gov/help/faq/faq-general.html#mywork
Well, for all countries that have signed into the Berne Convention, copyright is automatic at creation.
http://www.vsb.org/site/regulation/inquiry/
How to File a Misconduct Inquiry About a Lawyer
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.
Agree re EFF. If donating to Public Citizen, please earmark the funds for Paul Alan Levy's work on internet free speech (of which this case is an example.) Public Citizen, a Nader front, does some other projects the typical slashdot user might not agree with.
You know, I can read assembler for 4 different microprocessors. C and C++ as well as versions of perl, and java. I'm currently working on C#, they are holding a gun to my head. But reading legal speak makes my head hurt.
Supporting World Peace Through Nuclear Pacification
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.
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
In another 70 years (or is it 95 now? Or 120? I can't keep track anymore...), the letter will fall into the public domain, and you can post it online then. (Maybe then it will even start turning up in those bargain bins at the dollar store...)
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
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.
So you are suggesting that the solution for the problem of lawyers is more lawyers? Sorry, but no that is not the solution. Mainly because it only strengthens the in hold that legal speak has over common sense. Letting a murder go because someone forgot to say "simon says" is a crime in and of itself and should be treated accordingly. With malatov cocktails and hunting rifles. Seriously, if more people are going to be allowed to die because of a slimebag lawyer and judge who bows to word games then it should be that judge and that lawyer and those murders who die. I'm not encouraging day to day vigilantes, but just like when your car breaks down you have to get out and push, when they legal/government system breaks down the public has to step out side the normal social agreement and replace the broken parts. I know that sounds harsh, but there are always lives at stake it's just usually the lives of the average citizens in the courtroom. When most people go into a court room it's because there is something life changingly serious going on. Lawyers who play word games with people's lives are just as damaging to a harmonious society as thieves and murderers.
We are all just people.
If you read the link in the Parent, you'll find that Dozier wanted to subpoena an anonymous internet poster but couldn't because the posts didn't trigger any DCMA provisions. Then sent him one of their patented (er, copyrighted) pompous huff and puff Cease and Desist letters. It got posted and--Shazaam--they now have evidence of copyright violation sufficient for a subpoena for the identity of the poster--their original intent all along. Dozier is an internet bully and an arrogant arse wipe. This post is my opinion, so don't even think about it, Dozier.
What if I pointed a webcam (with sufficient resolution) at the cease and desist letter and sent out a live stream. Would that still be violating the copyright?
The article mentions that it was a "confidential" document. I don't see how someone can send me something I never asked for and bind me automatically against my will into a confidentiality agreement. Unless maybe its the government and involves a legitimate state secret, but even that must provide some reasonable recourse.
Maybe if the streaming thing doesn't work, someone could start an organization that people would send the letters too and they could provide third party verification that it exists and what the general content is without reproducing or posting the precise "copyrighted" content. It would be like a book review. They could also display the "original works" in some kind of museum.
Unless they start claiming copyright on all discussion and descriptions of the content like the NFL does...
... that makes people lose respect for a general system that does actually have merit (when not abused).
Mainly because it only strengthens the in hold that legal speak has over common sense. Letting a murder go because someone forgot to say "simon says" is a crime in and of itself and should be treated accordingly. With malatov cocktails and hunting rifles. Seriously, if more people are going to be allowed to die because of a slimebag lawyer and judge who bows to word games then it should be that judge and that lawyer and those murders who die.
Maybe you should read that link of yours. It wasn't a slimebag lawyer and judge bowing to word games, it's the legislature - your elected politicians - who wrote in a 5-year statute of limitations on murder. The judge doesn't have an option - he can't find the murderers guilty without ignoring the law, and remember, judges don't get to make laws. Only the legislature does. Your anger, like most vigilantes, is misplaced.
Of course bloodshed won't work. They don't HAVE blood. That's why we use a stake to the heart or decapitation.
Yes, this ruling is awful, but at the moment the only place it has any value as precedent is in the federal district court for the district of Idaho. The court of appeals for the district of Idaho is the 9th Circuit. Should the 9th circuit agree to hear the appeal and affirm the lower court's ruling, then this decision would become binding on those states within the 9th Circuit's jurisdiction (the west coast, Alaska, and Hawaii). Should the 9th Circuit reverse, in terms which explicitly dispose of the lower court's logic, then the opposite rule would govern those states.
why there is no manufacturing in the USA. I read a book a few years ago written by the founder of Sony Akio Morita and in his book Made in Japan he notes how extremely litigious the USA is compared to many other nations. My point is often people in the USA keep saying that manufacturing has left because of labour costs. My personal take on the matter is that a large part of that line of thought is BS. Take the ship building industry in Sth Korea, wages are higher in the ship building industry there than in the USA but they cant keep up with orders. Yes, the US legal system is partly responsible for chasing business off shore this killing manufacturing. Most countries do allow you to sue but they also make sure "it costs the person initiating the case" allot of money if it is a fishing trip ie they pay "everything" thus these types of cases are very rare unless they have allot of substance.
A judge pleading "oh but it's out of my hands, the murder must got free" is exactly the kind of words games I am talking about. Yes, the legislature is at fault as well, but to say that they are "my elected officials" implies that I had a worthy option available to me on the ballot. When there is a candidate running that will gut the bloated pile of bullshit that is our code of law, then you can say that they are "my elected official". When there is a candidate on the ballot who steps up and admits that the War on Drugs is more damaging to our society than the drugs themselves, then there could be "my elected offical". If good lawyers and thoughtful voting could solve the problems of our broken governmental system, then why are we in such a sorry state? We have per capita, four times the number of people in prison than the European average. and over three and a half times the murder rate. Our legal/government system is broken, but very profitable to the people in charge of it. How do you think it will change if not through violent reformation by the people who have been failed by that system? Do you think that people and institutions that have gained a great deal of power are going to willingly surrender their excesses? I would be all for a peaceful solution, but if I try to put economic pressure on the government, they will eventually send men with guns to haul me away or simply seize my bank account. The soap box and the ballot box have failed; the jury box isn't looking very promising (see my sig). Unfortunately all that leaves is the ammo box. Please point out a non-violent way will get results, because when I look at the direction of our country I don't see a place I would want to have children in.
We are all just people.
Just a side comment. Unless you make a positive and unambiguous claim that you are giving legal advice, then nothing you say should ever be construed as such. That it does not seem to work this way is one reason why the system is so fucked up. While giving such a disclaimer is probably a very smart move on your part, the idea that you would need one is very stupid. Everything anyone says should be "just their personal opinion and nothing more" unless they specifically state otherwise. It's the same deal with those disclaimers that state that "the opinions given here are not intended to represent my employer." Well no shit. If I don't see something along the lines of "Hi, I'm a spokesperson for Company X and this is our official statement" then there is no reason to think that it's a company position. People can believe whatever they want to believe; it does not automatically make that belief true.
The way things are right now seems designed to discourage critical thinking. If someone takes a statement as legal advice that was never positively represented as such, and suffers a loss because of it, that should be considered 100% their fault for failure to perform due diligence. Honestly I'm really tired of the way we seem to collectively protect and coddle stupidity when it is supposed to be painful by its very nature.
Again I don't blame you in the slightest for giving such a disclaimer, as it probably serves to protect you from just this sort of idiocy. What I don't understand is how we arrived at such a sorry state of affairs.
It is a miracle that curiosity survives formal education. - Einstein
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.
Convert the C&D to plain text and run diff against a stock C&D previously published by the same firm. Can they copyright that? I bet they can't. And if they start writing unique C&Ds to make it harder, then fine. Let the lawyers get a taste of their own medicine, namely that of being forced to do a lot of extra work for no good reason.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Once filed with a court, legal documents become part of the public domain and as such immune to copyright law. The thing to do then is to take the cease and desist letter, enter it into evidence in a court case, existant or otherwise, and then publish it as part of the discovery process.
Is it 5:30 yet?
Dear Attorney,
Thank you for submitting your creative work entitled "Cease and Desist Letter". Unfortunately, at this time we are not accepting submissions without appropriate literary representation.
For this reason your letter is being returned, unread. If in some future you have acquired the services of a literary agent, please have him or her contact us through appropriate channels so we may consider if we have interest in reviewing your work.
We apologize for the inconvenience, but as we may be working on a similar project, we are legally obligated to protect our creative work from possible future claims of infringement.
All the best, and good luck with your writing,
Me.
"Method for exterminating cockroaches"
but if attorneys are officers of the court (as I believe is recognized when they pass the bar), and if they deem something actionable at law, does not a letter stating that fact become, de facto, court property? In other words, if you want to sue me, you have to state the grounds for such and enter that into the public record in order to take action against me. How would a C&D letter be substantially different from that? It seems lawyers (as usual) want to have it both ways (they want YOUR money and MY money as well as theirs). OK that means they want it all three ways, technically. Coincidentally, as I walked in the door at home on Thursday, my 12-year old asked me how to spell 'attorney'. I said: L-I-A-R. It took him about 30 seconds to get it and now he won't leave it alone.
Unless you make a positive and unambiguous claim that you are giving legal advice, then nothing you say should ever be construed as such.
If you are a lawyer (even retired), it's probably best to play it safe. I'm not one, so I comment on legal manners without worrying that someone might think I'm giving them legal advice. What are they going to do, tell a judge that Fulcrum of Evil told them this is how things are?
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
Did you even read what I said? I addressed this point.
It is a miracle that curiosity survives formal education. - Einstein
Then it becomes PUBLIC DOMAIN, and the Copyright is dead.
Simple solution to an otherwise ugly problem.
--E--
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
just BitTorrent the C&D instead of hosting it.
Comment removed based on user account deletion
So now big companies can prevent you from drawing public attention to their behavior by stopping your ability to disseminate the content of your legal correspondences. Shameful.
The government could already prevent you from drawing public attention to their activities too. That was covered in the Patriot Act.
So i guess they got their bases covered finally.
Now that the letters are copyrighted, does it means that we lose the rights to read the letters say without paying 19.90 to read it?
Please examine the relevant law at http://www.copyright.gov/title17/92chap4.html, which specifies in detail where copyright law was modified by the Berne Ccnvention and this is no longer required. The lack of such requirement is critical to computer software lawsuits I'm aware of, and would otherwise overwhelm the library of Congress in trivial copyright registration.
Out-of-date knowledge of the law can be as dangerous as out-of-date knowledge of computer science, electronics, or medicine.
I'd actually like to read the judge's ruling instead of people summarising Dozier's crowing about it!
Start a happiness pandemic
First off, i loathe lawyers, politicians, copyright and the like. That said, consider this:
/devils
That C&D letter is, very likely, a form letter that the law firm created at some point. They put the time and effort into getting it jsut right, vetted it, and now it's their 'fill in the blanks' where they put in a few bits and pieces to customize it but otherwise it's already written. If you want a more specific example (don't flame, it's just an easy one that comes to mind): the MAFIAA and their "settlement" letters. I'd put money on the fact that they change the name, IP address and some minute information but it's otherwise 10ish pages of the same BS every time.
That's a work created by a talented professional (though i'd argue both talented and professional outside of this posting) and just like a news article, etc. would be copyrightable. I can't take that C&D letter and throw my law firm's name on it and re-use it, can I? No.
I'm quite sure this is just another 'crying wolf' situation. Either a higher court will dismiss with prejudice, overturn, or it'll get thrown back at the "copyright" holder if they every try to test this. Going further, this might give a bit more power to 'reasonable use'. It's REASONABLE to make legal documents public. I know the first catch Evil Lawfirm (tm) will try is to throw out reasonable use on the basis that xyz website hosting the 'offending document' has banner adds which generate money and therefore enforcement of their copyright to prevent others from earning profit form a work that's not theirs...
Yet another situation where laws (and copyright in particular) have become so complicated, twisted, complex and broad that there is no reasonable answer. WTB sanity check. PST.
You can get rich if you own a politician, but you have to be rich to buy one in the first place.
The US District Court for the District of Idaho...
One district court decision does not a nationwide judicial consensus make. Every time a bad ruling comes down in a federal district court, it does not mean that the entire justice system is screwed up, or that the final word has been said about the issue in question.
Read the EFF's Fair Use FAQ
If laws have to be specific and not biased or vague, why cannot they be a psuedo code/flow charts... rather than stupid archaic
fucked up english that would not even get a 1% in an english exam.
It appears to me that both the law is written in the wrong language and its as buggy as win95 with no patches.
Liberty freedom are no1, not dicks in suits.
Let him tack on defamation or libel charges to the copyright infringement. All he needs to do is convince a likely sympathetic judge that your satire could be read as being a factual account and bam, you have per se libel.
"Per se" is libel which, unlike your garden variety libel, is so obviously damaging that one does not need to prove one has sustained economic damage as a result of the libel to get damages awarded to you. Alleging criminal conduct in the course of one's professional affairs is per-se libel in many American states. This will put your lawyer in an awkward position, as the very best defense against libel, even better than truth (which can be, as a tactical matter, hard to prove), is "Eh, so what, you didn't suffer any damage as a result of the statement". Per se libel means you don't have that defense, and thus the inquiry is going to focus on a) whether you actually said what you said (that won't take a minute to resolve) and then b) exactly how much it is going to cost you, which will range from "lots" to "oh God".
Help poke pirates in the eyepatch, arr.
We all stood by when the 1998 DMCA repealed the first amendment. We all stood around and complained (but not loudly enough to gt us in trouble at work) as law after law made it illegal to speak.
SHUT UP!!! IT'S OVER!!!
We're just waiting for the chance to shoot the bastards at this point.
Andy Out!
Back in the CueCat days most of /. agreed that you could do with it as you wish, despite a license stating otherwise. There is no commercial value to a C&D so a book metaphor doesn't work either.
They did file registration. My impression is it was filed after they saw we were contesting their subpoena on the merits of the copyright, but I've never seen the copyright registration itself. But I'd like to. (Note to self...) Melaleuca - 43sb Lawsuit FAQ
Interesting, de2our, especially since a search of 2007 amd 2008 filings at www.copyright.gov shows no letters filed for registration under the name, "Dozier," nor any document entitled "cease and desist letter." There are a few 2007 registrations containing the words "Take Down" and "Takedown," but none listed as being copyrighted by Mr. Dozier or his law firm. Finally a search on "Letter" brings up such diverse titles as, "Letter from a Fallen Roughneck," "The Letter that Johnny Walker Read," "Letter to a Christian Nation," and "Letter to the Lady in Red," but again no letters that would meet the description of the letter in contention. Good luck with your defense.
Oops, you're doing it, too. Dozier had nothing to do with this case. Reading his article late last night, I got that impression, too.
Brad Frazer with Hawley Troxell Ennis & Hawley LLP acted on Melaleuca's behalf. Melaleuca's involved people are Josh Chandler, Ken Sheppard and Frank VanderSloot. Thanks for the copyright.gov suggestion. Found the registration at copyright.gov via searching searching for title 'Ken Sheppard'.
Melaleuca - 43sb Lawsuit FAQ
You're absolutely correct on all of this, with one minor detail:
Melaleuca (plaintiffs) hasn't filed a copyright suit. This is one negative side-effect of the DMCA's unique pre-litigation subpoena power: an unscrupulous party could contrive a copyright issue, then these subpoenas without ever intending to file suit.
Thanks for your attention to this.
Melaleuca - 43sb Lawsuit FAQ
Now that I finally understand your issue, I regret that the letter from Melaleuca was actually correctly registered with the copyright office. However, I think that people need to keep fighting these notices. I'm guessing that you may be the d2 who the court said should be "outed" when he refused to make 43rd State Blues disclose the true identity of "Tom Paine." You may want to talk to someone at the Electric Frontier Foundation (www.eff.org) and/or the allied group, Chilling Effects (chillingeffects.org) about pursuing an appeal on the First Amendment and fair use issues that the trial judge apparently rejected. Somehow we have to get the Bill of Rights back.
Essentially, you're asking why we should permit works to be copyrighted if they are unpublished. I share your concern. I think that among other aspects of the long-needed complete reform of copyright, we need to only permit published works to be copyrighted, although I would say that mere deposit in the Library of Congress would qualify as publication. Likewise, public performances should be considered publication (since the publication date is key to setting the copyright term). A lesser form of copyright would be available for works which were unpublished but which were intended for publication (e.g. manuscripts still in progress) provided that some proof has to be shown indicating the intent (similar to what you might see in an interference proceeding) and there is a time limit, to discourage the idea of sitting on these materials, or of later persons publishing what are, honestly, public domain materials.
I'd tell the judge that since this ruling is copyrighted too
No, it's not. US government works, such as opinions issued by federal courts, are uncopyrightable. See 17 USC 105. It would be nice if this were applied to all governmental entities, etc. None of them need the incentive of copyright, and it's an embarrassment to the public to have their governments assert such rights over them.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Just their name? A fact. Their address? Another fact. Together? Creative.
No, not really. Compilations of facts are only copyrightable when the compilation itself is original. There's nothing original about putting your name along with your address on a business letter.
You done wrong (a fact)*, what you can do about it (a fact)* and what'll happen if you don't (a fact)* copyrightable when combined?
It is the wording, not the underlying message.
If Leonardo Da Vinci rose from the dead, and painted a masterpiece which was actually allegorical and conveyed all the same information in the C&D letter, then it too would be copyrightable. Copyrights deal with expressions of ideas, not the ideas themselves.
Boy meets girl is an idea. Romeo and Juliet is an expression.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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
Yup, I'm d2. And it would be nice if the EFF or Chilling Effects could help.
The judge didn't reject the ideas outright; he just said 'now's not the time'. Thus the door to prelitigation subpoena abuses remains open, I guess.
But entirely true. If the judge disregards the law, then his ruling will just be overturned by the Appeals Court. Judges simply can't go against a written law.
Yes, the legislature is at fault as well, but to say that they are "my elected officials" implies that I had a worthy option available to me on the ballot... Please point out a non-violent way will get results, because when I look at the direction of our country I don't see a place I would want to have children in.Likewise. As I said, though, I think you're misdirecting your justified anger by attacking judges. Many people believe the same thing, in error, caused primarily by propagandists like Fox News who talk about "activist judges" and large corporations who talk about "tort reform" when really they just want vastly reduced liability for defective products.
Perhaps the first step - the soap box - needs to be revisited, but targeted towards the people spreading disinformation.
Here's a potentially interesting take on this by an actual law professor who actually read the court's actual decision.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
I'd like to copyright a court verdict. Specifically, I want to copyright the process of declaring a defendant guilty when the RIAA/MPAA are the plaintiffs. Every time that specific ingredient mix occurs in a courtroom, I want royalties paid to ME, because I'm the asshole who copyrighted it.
Seriously, this is bullshit.
-Billco, Fnarg.com