He says its not fair use, other attorneys, including those not affiliated with the groups he lists, feel otherwise. That’s the nature of the beast. I say something is fair use, someone else disagrees, we go to court and it gets fought out. Until a court actually rules on the infringement element of posting such letters, we won’t really know.

Even then, every case will have to be decided on a per use basis. Howevever, the Streisand effect basically makes it so that, if a company is attacked by lies, trying to bury them with C&Ds is a bad idea. The only way to counter a lie is with truth.

That’s my experience at least and that seems to be what Mr. Dozier is yet to figure out. The law and legal threats are not the cure for all business ills.

He says its not fair use, other attorneys, including those not affiliated with the groups he lists, feel otherwise. That’s the nature of the beast. I say something is fair use, someone else disagrees, we go to court and it gets fought out. Until a court actually rules on the infringement element of posting such letters, we won’t really know.

Even then, every case will have to be decided on a per use basis. Howevever, the Streisand effect basically makes it so that, if a company is attacked by lies, trying to bury them with C&Ds; is a bad idea. The only way to counter a lie is with truth.

That’s my experience at least and that seems to be what Mr. Dozier is yet to figure out. The law and legal threats are not the cure for all business ills.

http://johndozierjr.typepad.com/dozierinternetlaw/

Seems to make sense.

http://johndozierjr.typepad.com/dozierinternetlaw/

Seems to make sense.

First, this is not your case and the ruling does not apply, in any way, to the case discussed above. The matter to which you are referring is completely unrelated other than having some similar facts.

Second, the could did NOT rule that the posting of a cease and desist letter was an infringement. All that was ruled is that there was prima facie evidence of a potential infringement, which was all that was needed to obtain a subpoena. That, in turn, was established by the sole act of obtaining a USCO registration, something you yourself admit is a “rubber stamp” process.

Let us be clear here. There was no infringement ruled, no damages were awarded and all that was obtained was a subpeona to get an IP address (as well as any other information) of the person who posted the cease and desist letter

I have to say that I was suspicious when your announcement contained a truncated version of the decision. At eight pages it wasn’t particularly long and judges decisions are generally in the public domain as a work of the Federal government.

You can read the full decision, along with much better analysis of it, here:

http://www.joegratz.net/archives/2008/01/26/federal-court-doesnt-quite-recognize-copyright-in-cd-letter/

And yes, Mr. Gratz is an attorney.

It is also worth noting that the decision was a split verdict. They obtained the right to obtain information about the individual who posted the letter, but not the intended target, the person posting the allegedly defamatory information. This ruling was not lopsided by any stretch and could easily be viewed as a defeat.

Finally, you’ll note that I said above that I have “little doubt” that a cease and desist letter is protected, something I stand by, but what is much more debatable is whether or not posting it is an infringement. I think a strong fair use argument can be made, but such an argument was NOT available in this case.

There are still many unanswered questions in this case and on this topic. The hardest questions remain.

As I see it, this issue is no more resolved now than it was before the decision was filed. Others seem to agree.

Thank you very much for your comment.

First, this is not your case and the ruling does not apply, in any way, to the case discussed above. The matter to which you are referring is completely unrelated other than having some similar facts.

Second, the could did NOT rule that the posting of a cease and desist letter was an infringement. All that was ruled is that there was prima facie evidence of a potential infringement, which was all that was needed to obtain a subpoena. That, in turn, was established by the sole act of obtaining a USCO registration, something you yourself admit is a “rubber stamp” process.

Let us be clear here. There was no infringement ruled, no damages were awarded and all that was obtained was a subpeona to get an IP address (as well as any other information) of the person who posted the cease and desist letter

I have to say that I was suspicious when your announcement contained a truncated version of the decision. At eight pages it wasn’t particularly long and judges decisions are generally in the public domain as a work of the Federal government.

You can read the full decision, along with much better analysis of it, here:

http://www.joegratz.net/archives/2008/01/26/fed...

And yes, Mr. Gratz is an attorney.

It is also worth noting that the decision was a split verdict. They obtained the right to obtain information about the individual who posted the letter, but not the intended target, the person posting the allegedly defamatory information. This ruling was not lopsided by any stretch and could easily be viewed as a defeat.

Finally, you’ll note that I said above that I have “little doubt” that a cease and desist letter is protected, something I stand by, but what is much more debatable is whether or not posting it is an infringement. I think a strong fair use argument can be made, but such an argument was NOT available in this case.

There are still many unanswered questions in this case and on this topic. The hardest questions remain.

As I see it, this issue is no more resolved now than it was before the decision was filed. Others seem to agree.

Thank you very much for your comment.

In the first decision on this point in the US, the Idaho US District Court has ruled that there IS copyright protection in a lawyer cease and desist. I have blogged on the decision on the Dozier Internet Law Blog , it is being covered by Yahoo news, and you can see the Dozier Internet Law court decision and commentary and judge for yourself.

The liberal public interest lawyers who encouraged and organized the many comments on this point from non-lawyers are conspicuously silent on the decision, of course. The least they could do is go back to their many netizens and let them know their advice needs to be “recalled”. You would think that notion is not a foreign concept to Ralph Nader and his “Public Citizen” lawyers.

In the first decision on this point in the US, the Idaho US District Court has ruled that there IS copyright protection in a lawyer cease and desist. I have blogged on the decision on the Dozier Internet Law Blog , it is being covered by Yahoo news, and you can see the Dozier Internet Law court decision and commentary and judge for yourself.

The liberal public interest lawyers who encouraged and organized the many comments on this point from non-lawyers are conspicuously silent on the decision, of course. The least they could do is go back to their many netizens and let them know their advice needs to be “recalled”. You would think that notion is not a foreign concept to Ralph Nader and his “Public Citizen” lawyers.

The hypothetical: a woman makes a list of her favorite songs and puts said list on her website. No links, no lyrics or any files are offered, just the names of her top 10 songs/artists. she receives a takedown notice for posting the list from her ISP – but has no idea who filed the claim (unlikely it was the copyright holder since – even if listing your favorite songs = infringement- they are owned by 5-6 different studios).

In order to restore her website which has now been shut down she has to file a counterclaim and give out her personal info (address etc) which will be sent to this unknown person who clearly has misused the DMCA falsely by stating they are the copyright owners of all of Madonnas’ songs, along with Matchbox20, NIN and the Who:-). He now has her personal info and phone number and address.

As far as I am aware there is no requirement for the ISP to disclose who filed the original claim. So she is silenced or runs the risk of being stalked.

What am I missing from this equation? Is there really no obligation for the ISP to disclose who filed the original claim? If the ISP follows the provisions of the DMCA they have no liability at all for offering up the personal details in the counterclaim. (scratches head, confused)