Saturday, September 5, 2009


"The more I think about it, old Billy was right
Let's kill all the lawyers, kill 'em tonight"
The Eagles 'Get Over It'

Bloggers sometimes make famous people or businesses mad. I've not done so yet (at least not to the point of them taking action) but on occasion some bloggers find themselves faced with a Cease and Desist letter. This is a letter from a lawyer instructing the writer to stop writing about a certain topic or they'll face legal action. What it amounts to is a bully trying to intimidate free speech so that it stops making someone look bad. The legal action rarely follows up, but lawyers know that an official letter from them will tend to scare people into doing what they want even if they have no intention of following up or have no legal basis to do so.

The blogs who receive these tend to post them on their front page with a note about why they've gotten such a response, then to thumb their nose at the lawyers. This in the past has simply gotten the blogger more attention, their target more exposure, and the points they were making about this person or business seen by more people. In other words, it's counterproductive - the more the lawyers try to silence the blogger, the more the word gets out.

A recent twist to this is the attempt by at least one legal firm to claim these "cease and desist" letters are copyrighted and thus the blogger cannot put them on their site. Here's where law, common sense, and right all diverge. Eugene Volokh points out that copyright law is both vague and difficult to defend:

Five readers e-mailed me about the court decision saying that cease-and-desist letters are protected by copyright. Does this mean that sites that get such letters -- usually saying "your post violates my client's [libel / privacy / copyright / etc.] rights, so take it down immediately or else" -- are violating copyright law when they post the letters (usually in the context of criticizing the letters)?

Probably not, though it's not obvious. The magistrate judge's report, which was adopted by the district court, is here, and a careful read makes things clearer. But first, let's go over two basic copyright law principles (which I necessarily oversimplify):

1. Copyright law presumptively protects pretty much any written (or otherwise recorded) work, whether or not the work is commercially valuable, highly creative, or decorated with a copyright notice. That includes this post, nearly any letter, and nearly any e-mail, except those that are very short or that almost entirely consist of copies of someone else's work.

2. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a "fair use" of the work.

Professor Volokh explains that the judge did not actually rule that the letters are protected by copyright law, or he'd have gone on to examine fair use of the letters. Copyright law is, to put it mildly, a mess - something I've written on in the past and will again below. First, however, readers at Volokh Conspiracy discussed this particular case and the use of lawyers to bully people:

I think you'll find that the real import of this case is that the law firm in question managed to turn a failed request for a subpoena into a winning one.

The firm tried to subpoena the identity of an internet poster and failed because their case was in adequate, however when an anonymous poster uploaded their huff and puff C&D (with--if it is like other Dozier doozies--it's direct claim that the letter is copyright & confidential and you may not post the threatening letter in full or in part) to the web, then Dozier managed to subpoena the ID of that poster based on "copyright infringement"--inspire of the fact the letter was mostly boilerplate, a threat and inherently newsworthy.

The import of the case is not so much that letters can be copyright but that the letters that contain legal threats can be used as weapons themselves against the recipients who try and show the nature of the letter. It is as if a thug comes in to your store threatens to burn down your store if you don't pay protection money, but then declares his threat to be copyright and that he'll sue you for infringement if you relay what he said to anyone.

Dozier is an arrogant bully, from the letters I've seen posted in the past. I suspect that by Dozier's over-broad interpretation of copyright that even photocopying the threat for use as evidence in a court proceeding is illegal.

-by Scote

I think Professor Volokh's aside about the subpoena gets to what is really the fundamental issue here. I know that the Supreme Court is VERY skeptical of First Amendment defenses in copyright cases. But this is a strong case for one. Fair use has us balancing all sorts of factors to determine whether the letter can be published. And, as Professor Volokh notes, because fair use is statutory and a balancing test, it offers little protection against a discovery subpoena.

What we really need is a per se rule. It should not be illegal to post a demand letter on the internet to criticize it, and the reason is because you have a First Amendment right to criticize a demand letter and drawing a categorical rule won't impair the exploitation of any copyrighted works made for profit. And if you have this per se rule, then we can protect the anonymity of the speaker as well.

-by Dilan Esper

And it should also be presumptive fair use to post a legal threat to the internet for public scrutiny.

Posting it to the internet shouldn't be considered copyright infringement anymore than posting the original in your store front window should be. The internet is today's version of posting the item in a shop window, the "copying" aspect is secondary because the poster's fair use rights to post the letter do not diminish the value of the copyright except to the extent the author's claims are shown to be untenable.

-by Scote

To cover this situation, we need an exemption for "legally operative words," otherwise law firms won't be able to copy court filings.

-by Tony Tutins

More broadly, is there any conceivable reason why a C&D letter should be entitled to copyright? There is no creativity involved and lawyers certainly do not need any government granted monopoly as incentive to "create" such things. Given that I'd argue that this type of letter quite simply is not entitled to copyright protection. (Granting it violates the spirit of the copyright clause in the Constitution though it probably does not actually violate the letter.)

The only argument that makes any sense is the difficulty of carving out various exceptions to what is covered by copyright. But I would think one could easily craft a n appropriate exception for this class of document.

-by KeithK

Dozier's tactic reminds me of the usenet loons of yore. The classical scenario was that a loon would post a troll with a copyright notice at the bottom. If anyone responded and quoted any part of the original article the loon would respond with threats of lawsuits for copyright infringement. Hilarity then ensued, at least the first time one saw such an event. But once was enough, and killfiles were updated accordingly.

-by Fub

At Overlawyered, Walter Olson also brought this situation up, and commenters there had this to say:

Those who have followed Dozier's tactics in the past will not be surprised to learn that Dozier is badly misrepresenting the facts of this case.

The court ruled that registering the letter with the copyright office establishes a prima facie case that the letter is copyrighted, and that, given the context -- a motion to quash a DMCA subpoena -- it wasn't appropriate to investigate the merits of the copyright claim.

In other words, at no point did the court actually rule that the letter was copyrightable, let alone that fair use wouldn't apply. All it said was that if you mail a document to the Copyright Office and pay your $45, the court won't investigate whether the document is copyrightable until the letter writer tries to sue for copyright infringement.

Or, to put it even more succinctly, this decision is not a ruling that a cease and desist letter is copyrightable.

-by David Nieporent

Some laws are copyrighted and you cannot get copies of them without paying for them nor can you redistribute them. That's right, to find out what laws you need to follow, you need to shell out $300.

If laws themselves can be copyrighted, why not legal notices?

It would seem to me, though I'm far from a legal expert, that citing the precise text of laws in the form in which they are in force would not be a violation of any copyright someone might coincidentally hold to that same text. Perhaps an exception might be made where legislators knowingly passed someone else's copyrighted work into law against the wishes of the copyright holder.

But as I see it, once a copyright holder chooses to turn his work into "magic words" they lose protection of copyright when used in that way. A court cannot freely choose any of millions of creative ways to enforce the building codes, it must enforce the codes as passed by the legislature. A contractor cannot choose any form of building codes to follow, he must follow the exact laws passed by the legislature.

When there is only one way to do it, and no other way will do, it is not copyrightable.

-by David Schwartz

I used to work for a Federal regulatory agency, and back in the beginning of the internet, right after Al Gore invented it, we had a stakeholder who thought it would be a good idea if our regulations were available electronically. Until then, you had to buy a copy of the CFR from the Govt Printing Office, and without experience, it was hard to find stuff in the thick books.

Our stakeholder proposed to transfer our regulations to a CD, which they would sell to other interested stakeholders. We would get a few copies of the CDs, but were prohibited from making electronic copies available generally to the public. One of our "business-oriented" managers made this decision, to keep the public from being able to read the government regulations electronically, for free.

Unfortunately for him, just after he signed this contract, Newt Gingrich won control of the congress, and he ordered that ALL of the CFR be made publically available on the internet, for free, so our stakeholder never sold any of his CDs.

Another example of people trying to copyright and profit from documents that should be publically available.

-by RXC

It is settled law. Copyright of a law violates public policy.

The letter belongs to a legal dispute. Unless covered by a privacy clause in a contract, this presumption violates public policy.

If a judge posts my small claim in the public records of the court, for the return of a rent deposit, should I be able to sue the judge with a presumption of copyright? Prisoners copyrighted their names. They sued judges for infringement by the judge utterance of their names, for $250K each time. They thought they had seized assets of judges and wardens. They offered to settle in return for release from prison. Their sentences were increased for harassment.

via Techdirt

Daily Telegraph story

The aim here is the same, to harass the adverse third party. That may violate a rule of conduct and a judge rule of ethics, too.An appellate judge has to protect the integrity of the court. (Yes, I actually believe in that.) The judge should reverse the decision, and assess triple legal and court costs from personal assets, for this bonehead lawyer stunt.

-by Supremacy Claus

OK so to make this a bit more clear, here's how it went:

- A company hired the Dozier legal firm to send a cease and desist letter to a blogger to stop him from saying something the company didn't care for.

- The blogger posted the letter on his site and laughed at the lawyers.

- Dozier tried to soebpena the blogger's real name to harass them personally, but this attempt failed.

- Dozier then brought the case to court over copyright violation, knowing this wouldn't work, but through it learned the blogger's name.

- Later in an unrelated case, a judge ruled that technically legal letters are copyrighted, but did not rule that they were protected by law.

- Dozier claims that they were right all along because of this ruling.

Here's where it gets fuzzy, legally. Copyright laws are odd because you don't actually have to file anything to get a copyright. It's presumed, if you create something, it's already copyrighted, nobody can take that away from you. You can give ownership away, but it can't be stolen legally. Filing copyrights is only a way to make any later case stronger and easier to prove - you can point to the date and the official recognition of copyright.

Thus, if you draw a nifty picture of a giraffe, it's copyrighted, even if you don't sell it or put it out in public. Ironically, the more private it is, the better copyright protection you actually have. Merely being copyrighted does not, however, necessarily mean that any use of your material is illegal.

People can use portions of your work as "fair use" such as a paragraph or two (up to a page) from a book, a few seconds of a song, part of an image, and so on. This is so that your work can be referred to in reviews or mentioned in a story without facing legal sanction. I published portions of the Screwtape Letters by C.S. Lewis even though that's still a copyrighted work (all of Sir Arthur Conan Doyle's work is public domain and not copyrighted, so I could have published all of The Tragedy of the Korosko). I could do so because I only printed a section of one of the chapters.

Other uses aren't copyright violations either - for instance if you take a letter and put it in the window of your store you have not violated copyright, you've simply made it visible to other people. It's like handing your book around and different people reading it. Letters are not copyrighted because the content is presumed to be meant for sharing. If you wish for a letter to be kept private, it is more of a contractual issue (you agreed upon something) rather than copyright issues. A letter, as Professor Volokh points out, is not protected: "It's pretty clear that a letter sent to one person is not treated as 'published' for copyright law purposes."

Copyright presumes that the creator of the object stands to lose something by its use. It's not simply an ownership issue, it's a loss of earning, status, or meaning issue. Copyright is a legal method of protecting potential gain by the creator through misuse of his product. It also has to be unique expression, you can't copyright something that's identical to something else. Just because I drew "Skippy" for a contest doesn't mean I now own that picture of Skippy, it's a copy of someone else's product.

A legal form such as a cease and desist letter is not unique content and it does not represent potential earnings or gain for the writer. It's a standard legal document and cannot be protected by copyright law in my opinion. In any case, displaying a letter you've received is different from using a letter you've received. If I print a letter in a book to make money off it, that's a different issue than pasting that letter to the front of my car and driving around with it so everyone can see. There's no loss with the latter, it's just publicity at worst.

This is the classic example of why people despise lawyers. This is a legal stunt to try to bully people, it's using the system as a weapon rather than seeking justice and truth. This is the kind of lawyer that is repellent and represents so much damage to society. It's the kind of lawyer Senator Edwards is, for example: the kind that will do and say anything whatsoever to win, gets vastly rich off the process, and insists all the time that they're standing for justice and defending the weak.

by Christopher Taylor

~ Source: 'WORD AROUND THE NET' Blog

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