“Court Says You Can Copyright A Cease-And-Desist Letter”

by Walter Olson on January 28, 2008

We and many others criticized a law firm in October for taking the position that its cease and desist letters, also known as nastygrams, were copyrighted and thus could not be posted intact on the web by its targets. However, if a press release from that law firm is correct, a federal court in Idaho has just indeed taken the position that cease and desist letters may be covered by copyright law. Such a ruling, if upheld, would make it more difficult for the targets of bullying tactics by lawyers to rally online support for their cause. (TechDirt, Jan. 25; Slashdot, Jan. 26; Dozier Internet Law press release, PRWeb, Jan. 24).

More: “if a press release from the law firm is correct” turns out to be a big if: according to Ron Coleman at Likelihood of Confusion, as well as our own commenters, the Idaho federal court ruling falls far short of establishing any such proposition about these letters’ being copyrightable. See also: Victoria Pynchon, IP ADR blog, TechDirt later post, Paul Alan Levy @ CL&P. And yet more: Marc Randazza, Eugene Volokh.

{ 7 comments }

1 Supremacy Claus 01.28.08 at 12:45 am

OK. Nastygrams have a copyright.

What is fair use of a nastygram?

http://www.copyright.gov/fls/fl102.html

Naturally, fuzzy. To generate lawyer jobs.

2 David Schwartz 01.28.08 at 2:33 am

This page provides more details. The court did not rule that cease and desist letters could not be posted intact, only that he had made out a prima facie case of copyright violation. This does not mean the copier/poster doesn’t have available affirmative defenses such as fair use or that those defenses don’t have merit.

However, it does have a chilling effect, no doubt about that.

3 David Nieporent 01.28.08 at 3:23 am

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.

4 David Schwartz 01.28.08 at 8:02 am

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.

5 rxc 01.28.08 at 8:51 am

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.

6 Supremacy Claus 01.28.08 at 9:09 am

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.

http://techdirt.com/articles/20070720/151338.shtml

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/07/19/wplan19.xml

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.

7 OBQuiet 01.28.08 at 5:22 pm

IANAL and I think I asked this before but will ask again.

The person who received the letter had a legal right to show the actual letter to others, correct?

Would he be allowed to show it to someone like his lawyer over a video feed?

Could he display it on web cam?

Where does the arbitrary point get reached where the letter that he owns cannot be made available through electronic display?

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