Copyright and Cease and Desist Letters

When Justin Leonard created his site infomercialscams.com, he probably anticipated that he’d attract some unwanted legal attention. By letting people post their infomercial horror stories and calling out the con artists of late night, he was bound to ruffle some feathers, including a few lawyers.

However, he probably didn’t expect any of that attention to be in the area of copyright. Trademark and defamation perhaps, but not copyright.

But that is exactly what has happened to him and the blame is not on him or anything he posted on his site, but rather, an overzealous attorney who tried to use copyright law to stiffle completely legitimate free speech.

The result is that what started as a cookie-cutter defamation issue has now evolved into a copyright controversy that borders on being a laughingstock.

The Story So Far

On September 9 of this year, Leonard received a letter from the law firm Dozier Internet Law, P.C. regarding issues of alleged defamation. The attorney, Donald E. Morris Esq., was representing DirectBuy (noisy site), a “buy at home” company that has received many bad reviews on Leonard’s site.

On the surface, it seemed to be just another defamation dispute. DirectBuy took issue with some of the reviews on Leonard’s sites and demanded that they be taken down and that DirectBuy be compensated for costs. This type of dispute, unfortunately, happens pretty regularly.

But it is the last paragraph of the long, legally dubious, cease and desist letter (PDF) that has gotten the most attention. There, Morris said the following:

“Please be aware that this letter is copyright by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.”

In short, in an attempt to keep lid on the actions of DirectBuy and their law firm, Morris threatened to go after Leonard for copyright infringement if he posted the letter.

Fortunately, Leonard was unbowed and he sought the counsel of Public Citizen, a non-profit consumer advocacy group. The group posted the letter on their site, in direct violation of Morris’ order, and also posted a strongly-worded reply to it.

What happens next remains to be seen.

The Copyright Issues Within

There is little doubt that a cease and desist letter is protected under copyright law. It is a creative work of expression, this one more perhaps creative than most, and is fixated into a tangible medium of expression. It certainly is protected and the fact it is a cease and desist letter does not change that.

However, posting a cease and desist letter also has a very strong fair use case. Consider the four factors for a moment:

  1. The use would be for commentary or criticism of the actions of the party. It would also be likely considered transformative as it would be a part of a larger work criticizing the sending of the letter.
  2. A cease and desist letter would be likely considered unpublished, affording it at least some protections.
  3. One would likely be using the whole work though Morris’ threat specified “in full or in part”. Using the full work would be a minor strike against fair use, using just part of it wlikely would be a strike for it.
  4. Since the work has no commercial value, the market for it can not be damaged. Though I suppose one could use the cease and desist to create a template and sell it, that would be a stretch and it doesn’t seem to apply well to this case.

Granted, it is completely impossible to tell whether or not a use is fair until a judge and/or jury get ahold of the case, but considering the two most important factors, the first and the fourth, strongly favor fair use and the secondary factors, the second and third, only slightly favor infringement, it seems at least likely that the use would be found fair.

Other Hurdles

Of course, a fair use defense assumes that the case even makes it to court. The odds of that happening are slim to none.

First, in order to sue in a Federal court, the letter will have to be registered with the United States Copyright Office. That is unlikely to be the case right now and it seems unlikely that they will take that step in the future. Furthermore, if they do register later, they will only be able to claim statutory damages that occurred after the submission.

The second problem is that, even with statutory damages it would likely not be financially viable. Without being able to prove that the infringement was willful, damages will be at the very low end of the spectrum.

Finally, I doubt any judge or jury would allow copyright law to be used a club to silence free speech. Companies may try, but when the cases go to court, there is a very strong record of courts coming down in favor of the little guy.

Furthermore, even if DirectBuy and Morris make good on their threat to take the case to another country, the odds of them being able to collect on any judgment are slim to none. Any positive ruling in Canada or elsewhere would be, at best, a pyrrhic victory.

Conclusions

Although I am a big of a supporter of copyright protection (within reason), I am an even bigger supporter of free speech rights.

Using copyright law to club free speech only hurts both free speech and copyright. Not only does it hurt your case legally, but it also hurts copyright law in general by turning public opinion even farther against it.

In short, if you get a cease and desist letter and feel the need to post, seek out legal counsel and follow their advice. Odds are that there aren’t any major issues with it, but it would still be better to be safe than sorry.

On the other hand, in something that relates to readers of this site, if you send out cease and desist letters, don’t put anything in there you don’t want posted on the Web. There is little stopping someone from posting such a notice with relative impugnity. Chilling Effects already posts DMCA notices on their site with few legal issues and others can likely do the same.

The bottom line is, when you out there, defend your rights but always be one of the good guys. Don’t do anything you would be ashamed of the world knowing about.

After all, it is a public Internet and word has a way of getting around.

Hat Tip: William Patry
Special Thanks: Blog Law Guy for his input

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