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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.
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.
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
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.
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.
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.
Of course, the vast majority of them are lawyers.
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
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
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.
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
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