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

[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: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

[wealthychef]

That's exactly what is wrong with our legal system. Your arguments make perfect sense, the premises are valid, and yet the conclusion is unfair. If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself. That's just common sense. There is sometimes a tension between being a nation of laws and knowing when the law is insufficient to mete out justice. Lawyers and judges never understand that there needs to be some slop in the system and if the system won't provide it then people MUST create it by just working outside the system.

Re:not as important as summary makes out

[cp.tar]

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.

Funny, that. I was thinking of some other kind of professionals.

You know, the ones that would do just about anything for money, and if you feel dirty afterwards, well, that's your problem.

What are they called... prot... prost... ah, yes: politicians.

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

Re:not as important as summary makes out

[boris111]

You want justice? Fire your lawyer - paying a lawyer is, in most cases, like feeding a cockroach.

As much as I want to agree with that statement... Many of our local governments are set up so it's impossible to not use one. My friends were having an amicable divorce. No disputes, no kids, they just wanted to break it off. So they followed all the rules.. researched all the paperwork required... filled out all the paperwork. All this with no help from the grouchy county employees at the court house. So they went it alone. Guess what they omitted one thing on their paperwork and they have to start the whole process over again and they're out $600. The system is set up in my county so you MUST have a lawyer to get divorced. They were even told by the grouchy civil servants that that it would be stupid not to get a lawyer.

They're dishing out the $1400 this second time for a lawyer. They don't have to do ANYTHING now. They just want to move on with their lives at this point so they gave up and paid that cockroach.

There is one good trend I'm hearing from the nearest major city Philly. People are actually encouraged to not get lawyers for their divorce and there is gov't programs for legal advice to make your paperwork go smoothly.

Re:not as important as summary makes out

[AmericanInKiev]

Technically, cease and desist letters - "are" - part of due process.
By definition, the power of a C&D letter is the rights which they bring to a later copyright infringement suit.
In summary, IIRC, "Malice" can be implied where a C&D letter has been sent and ignored, this allows for "Punitive" damages in addition to "Real" damages.

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.

Turn the tables?

[ThreeGigs]

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).

Re:Turn the tables?

[smittyoneeach]

Dude, when I get my patent on the Roman alphabet approved, you guys are so baked.

Re:Turn the tables?

[budgenator]

Now that would be interesting,

1. get copies of the lawyers boilerplate
2. insert your business/personal name address instead of Dozier Internet Law ect.
3. Register with Copyright office
4. every time they send you a C&D letter, you send one back

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.

Re:yes

[dreamchaser]

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.

More to the point...

[Gordonjcp]

... can you copyright a gallon of petrol through the law firm's letterbox?

Re:More to the point...

[Anonymous Coward]

Mod parent +1 Inciteful.

This says a lot

[HangingChad]

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.

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.

Re:From the judgement...

[cpt kangarooski]

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

It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').

Re:From the judgement...

[cpt kangarooski]

Britney Spears is neither science nor an art; she's a person. Her music would fall under science; that it's bad music doesn't matter, since we don't want the government protecting or not protecting works based on their artistic taste.

Cooking is a useful art, and recipes can be patented if they meet the requirements of a patent. This does occur from time to time -- there's a patent for a peculiar kind of peanut butter and jelly sandwich, IIRC -- but often recipes lack novelty or nonobviousness, or the inventor doesn't bother getting a patent. The written expression of a recipe -- as opposed to the process for cooking that the recipe describes -- is copyrightable if sufficiently creative. But anyone could copy the process and reword it, and where the wording was not creative or original (e.g. "Pre-heat oven to 350 degrees") that wouldn't be protected at all. The difficulty in writing succinct, clear, copyrightable recipes is such that most people don't bother.

Like I want to read all of that lawyer speak

[samuel4242]

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.

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...

FYI

[fred911]

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

Court did not rule on copyright issue

[nameer]

From the ruling :

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

All the court said is that the prima facie evidence exists to let the subpoena stand for the simple reason that the slimy law firm registered the copyright of the letter. However, the court acknowledges that the defendant has "valid arguments" on their claim that the letter cannot be copyrighted. The court simply says that the analysis of those claims is beyond the scope of determining to quash the subpoena, and the prima facie case is sufficient to let the subpoena stand. As I see it, the defendant will now have to go to court and challenge the copyright directly instead of the validity of the subpoena. Of course, this is /., and I am not a lawyer.

The point of copyright

[Jugalator]

... 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.

Re:The point of copyright

[QuantumG]

Copyright exists to promote the sciences and the useful arts. And to answer your question, yes, most everyone has forgotten this, if they ever knew.

Re:The point of copyright

[Homology]

Copyright exists to promote the sciences and the useful arts. And to answer your question, yes, most everyone has forgotten this, if they ever knew.

Indeed, it also a time limited monopoly not intended to last to the end of days, even though some American corporations tries to make it that way. One of the reason it is a time limited monopoly is in recognition of the fact that science and art is not done in a vacuum but builds upon work and ideas of others.

A Review

[Anonymous Coward]

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.

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:With rulings like this...

[conlaw]

First off, let me state that I am an inactive (retired) lawyer so that nothing I say here is legal advice. However, I really enjoy researching a topic like this, so I'll share a few little bits of information I discovered from reading the U.S. Code and a few other publications from the Copyright Office (www.copyright.gov).

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.

Re:With rulings like this...

[DustyShadow]

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. Incorrect. Notice has not been required since March 1, 1989, the effective date of the Berne Convention Implementation Act of 1988. This is shown in 17 USC 401(a) where the word "shall" was changed to "may":

17 U.S.C. 401(a) General Provisions.-- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. There is still a notice requirement, however, for some works created or published before 1989.

Don't worry, it Conflicts with my patent

[goombah99]

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.

Politicians

[Nerdfest]

Of course, the vast majority of them are lawyers.

Nice, short summary of what was really decided

[Fnord666]

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.

Re:With rulings like this...

[conlaw]

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.

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