Don't Post This Cease-and-Desist Letter, Or Else
from the let's-test-that-theory dept
Greg Beck writes "In an apparent attempt to avoid the Streisand Effect, lawyers sending threat letters sometimes claim that the recipient would violate the firm's copyright by posting it online. This post is about Public Citizen's response to one dumb threat letter and its decision to post the letter online despite the copyright claim." It's funny how popular it has become for lawyers to claim it's illegal to post or even show anyone their cease-and-desist letters. Remember: just because a lawyer says so, it doesn't mean it's true. You can see Public Citizen's response to the letter (pdf), which lays out a variety of reasons why the cease and desist is ridiculous (it's yet another attempt to force criticism offline) and ends with a fantastic response to the claim that the original C&D is covered by copyright and cannot be posted online without additional charges: "By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the internet." Somehow, I doubt the opposing lawyer will test out this theory.
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by RandomThoughts on Oct 8th, 2007 @ 7:29am
I love email wording that says if I have received the email in error and I make it public, then plagues will strike my children and the Cubs will lose in the playoffs (OK, that does happen)
Maybe they should make sure they send it to the right people?
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Can you turn on the lawyers? by Mike F.M on Oct 8th, 2007 @ 7:50am
Is it possible to turn on lawyers that make false claims like this?
I mean, the general public doesn't know enough about this subject to know if this claim - or others like it - are true or not. If it turns out that they are false, what can be done to the sneeky lawyer who tried to trick unaware people?
It's the same as getting, for instance, videos pulled from Youtube when they are obviously fair use. You see plenty of these cases, but does any one really fight back and get the people perpetrating their ideals as facts correctly punished?
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Disbar them... by Anonymous Coward on Oct 8th, 2007 @ 7:53am
I say we fix this problem by placing a vaguely worded law on the books that allows for disbarment for misrepresentation of the law. If you try to imply legal rights, where you have none, then you can't practice law anymore.
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by Anonymous Coward on Oct 8th, 2007 @ 8:03am
If you do manage to implement a law claiming that a lawyer will be disbarred for misrepresentation you'll probably see just how fast the courts can act.
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RE: Disbar them... by Mike F.M on Oct 8th, 2007 @ 8:05am
The problem with this is that some of the laws are so vague that it is impossible to specify exactly which way the law might go with certain situations.
It is impossible to write a law that will apply 100% to 100% of cases. There are some that are exact examples of the law - (the majority, one would hope) - but the rest require a decision on the topic.
Enter a judge / jury.
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Re: Disbar them... by Richard Ahlquist on Oct 8th, 2007 @ 8:09am
Only problem with that AC is you have to take into account intent. If they intend to misrepresent its one thing if they are just morons....
So already you have to enter into more mucky muck.
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No License... No Reading by Todd on Oct 8th, 2007 @ 8:41am
Dear Lawfirm,
Regarding your recent letter containing copyrighted content, I seem to not have an appropriate license to read your letter. I sure wish I could respond to whatever allegations you claim, but that would require that I read your letter, of which I do not have a proper license to do.
Sincerely,
Your Victim
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Re: Re: Disbar them... by Avitarx on Oct 8th, 2007 @ 8:46am
But if they are morons the best interest is served by their disbarment.
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copyright by James on Oct 8th, 2007 @ 9:08am
In order for the letter to truely be copyrighted do they not have to register it with http://www.copyright.gov with out this, IMO, they can not sue for more than the actual damages. lol
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Outrage is relative to image by Beefcake on Oct 8th, 2007 @ 9:20am
If a car mechanic was feeding their customers a load of crap, there would be no shortage of people arguing, threatening, and shouting at them despite having little or no knowledge of the workings of their car and frankly finding the mechanics involved to be mysterious and confusing.
Yet when a lawyer sends a letter, many of those same people comply with the instructions because they have little or no knowledge of the workings of the law and frankly find the mechanics involved to be mysterious and confusing.
It's amazing how easily impressed we are by the self-conjured image of a person in a suit, as opposed to when presented with the reality of a person in coveralls.
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For all those calling for retribution... by Sean on Oct 8th, 2007 @ 9:49am
Two things are required to counter nonsense like this; intelligence, and the free and open exchange of ideas. The power of this scam is that it takes advantage of the expected ignorance of its target. The hope is that this meme sends Donald Morris and his ilk back to ambulance chasing.
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making this email public or ridiculing it will res by Anonymous Coward on Oct 8th, 2007 @ 9:51am
http://static.thepiratebay.org/enya_response.txt Heres a fun legal threat sent to piratebay
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Copyrighted by BlueBearr on Oct 8th, 2007 @ 10:11am
How about this:
Dear Mr. Morris, Esq.:
I have read your letter dated September 21, 2007. Unfortunately, according to your letter, I do not have the rights to act upon the contents of your letter.
You state in your letter that I am "not authorized to republish this in any manner." Your letter also says across the top "FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY."
Because of the tone of these warnings, I feel that it is inappropriate for me to assume any rights that are not specifically granted to me in your letter. Unfortunately, you do not detail your definition of any of the above restricting terms, and how they relate to the activities that I consider relevant to acting on the contents of your letter. Am I permitted to "review" the contents of the letter? Can I transmit the letter to another location, either physically or in electronic format, for the purposes of more expeditiously reviewing your request? How am I permitted to share the contents with any other individuals (say, any employees, or any site visitors that you claim have posted defamatory content)? May I use the contents to direct activities regarding the content that you regard as defamatory? This are some but by no means all of the usages that I need to have defined in order to be able to consider your request.
Until and unless you fully describe and define any and all activities and usages that have been granted to me in use of your copyrighted material, I cannot act on any information that is contained in this copyrighted document. If in any subsequent communications you fail to fully define all usage rights that I consider relevant to considering your request, I will again withhold action until this oversight is corrected.
Accordingly, I am returning your copyrighted material with this letter, as I cannot be held accountable for its contents being misdirected or misused.
Regards,
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Ive arrived from the land of /. and wonder... by crossbonez on Oct 8th, 2007 @ 10:11am
If the copyright claim on the letter, and the basis of the C & D claims written about in the letter, are both basically 'scams' - does that mean they will be coming out in DirectBuy's upcoming spring catalog? :)
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Re: Re: Disbar them... by ehrichweiss on Oct 8th, 2007 @ 10:18am
Honestly I think that if an attorney is either malicious, greedy or a moron and they misrepresented the law, they should be disbarred. Ignorance of the law isn't an excuse for average everyday citizens so I think we should hold the people who are supposed to be SIGNIFICANTLY more knowledgeable of the law even more accountable than we should.
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Abuse of the law by SPR on Oct 8th, 2007 @ 10:26am
I agree that we should have laws penalizing lawyers for lying about what a law says and/or requires. Who will pass such laws? Our Senators and Representatives, a vast majority of which are lawyers? This is a good time to push for laws prohibiting lawyers from holding public office.
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by Anonymous Coward on Oct 8th, 2007 @ 10:32am
I don't know if all laws are written vaguely or not. Take for instance the UCMJ. Its pretty straight forward to read and understand what its talking about, other than article 134, but that is there really to railroad someone out, or as a tack on when you've really upset the PTB. The UCMJ for the most part, can be read and understood by anyone who looks at it. Its ment to be simple and straight to the point. The biggest difference of course, is that its military law, so its streamlined and without as much glut.
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Re: Disbar them... by Bob on Oct 8th, 2007 @ 10:36am
You forget. Lawyers write the laws.
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Re: Can you turn on the lawyers? by Rev Egg Plant on Oct 8th, 2007 @ 10:46am
who says it's lawyers making false claims? Who says the letter writer is even a lawyer? I can easily fake any corporate letterhead I need to and write anything I want on it, not that I make it a regular practice or anything. Or kill me.
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The reply letter is even better by kevink on Oct 8th, 2007 @ 11:02am
if you imagine it being read by Samuel L. Jackson (as Jules from Pulp Fiction.)
Or maybe as Ian McShane (as Al Swearengen from Deadwood.)
The blue language just makes it, you know, work.
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Gotta love the lawyer website! by Scoundrel on Oct 8th, 2007 @ 11:13am
Anyone notice the website listed on the C&D letter? Gotta love it. It has it's own YouTube Infomercial on the main page. LMFAO!
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Opened up by Archangel Michael on Oct 8th, 2007 @ 11:28am
"FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY."
This is a LICENSING statement. It licenses the copyrighted work for the purposes of "Negotiation and Settlement". Which in this case enables me to publish the work as a means to publicize their C & D letter and criticism of it, a common tactic in Negotiations.
I have used the copyright within the guidelines of their copyright license.
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Re: Outrage is relative to image by ConceptJunkie on Oct 8th, 2007 @ 11:32am
It's real simple. The guy in the suit can ruin your life. The guy in the coveralls can only not fix your car.
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Re: Can you turn on the lawyers? by Eric the Grey on Oct 8th, 2007 @ 11:38am
I still say that certified Lawyers who pull shit like this need to be disbarred and prevented from ever working as one again.
EtG
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Re: copyright by Eric the Grey on Oct 8th, 2007 @ 11:47am
Perhaps you should actually read the site in question? Under the first link, Copyright Basics, there is some interesting information, such as:
emphasis mine
However, given that the entire basis of the letter is fiction, perhaps it can be copyrighted...
EtG
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Yea,.....Right.... by BigEd on Oct 8th, 2007 @ 12:14pm
What comes in my mailbox is my property to do with as I please. Especially since I didn't order it or ask for it.
Is there a case here for mail fraud???
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TPB by crystal_tech on Oct 8th, 2007 @ 12:30pm
dude just take a look at the pirate bays site they posted tons of them quite funny if ya think of it
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by Frog Face McQuaid on Oct 8th, 2007 @ 12:41pm
I find it interesting just how much we are willing to give up...
I don't actually own my car. Well, ok, I do own it, but I cannot use it (on public roads) unless it is legally licenser, registered, insured, and I am licensed...
I don't own my iPhone, well, same thing...I do own it, but I just cannot use it unless I let Apple and AT&T dictate to me how, when and where.
SO what next?
The big flaw in thinking that there is some protective copyright on a C&D letter is that once it is filed in the courts, it becomes PUBLIC DOMAIN...so much for Copyright.
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Re: Re: Disbar them... by James Miller on Oct 8th, 2007 @ 1:39pm
None of this really matters anyway because if a lawyer's lips are moving he's lying. Law is the stomping ground of sanctioned criminals and cheats and is no place for decent human beings.
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There is one thing, however: by Lefty on Oct 8th, 2007 @ 2:05pm
I work for an online Electronics Retailer. This is an awesome example of how those with resources often bully those without. But remember: If you go from an open-ended forum to running a site like Directbuysucks.com (just an example, I have no knowledge or intention of looking up to see if such a site actually exists) and you put banner ads, you've crossed a line into the for-profit. Then they can come after you. Just food for thought.
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Re: Re: Outrage is relative to image by mc on Oct 8th, 2007 @ 2:05pm
Boy, are you a slow leak. The guy in the suit can cost you money, true. If that is the only thing you value in your life, you lose anyway. The guy in the coveralls can kill you, or cripple you (but then you would get your own suit), and/or anyone who rides in your car. But, since you have such a low regard for anyone not in a suit, bring your car to me - I'll fix you right up, and it won't cost you much (not Very much, anyway)...
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Re: Re: copyright by da on Oct 8th, 2007 @ 3:14pm
Also following section at http://www.copyright.gov/circs/circ1.html.
How to Secure a Copyright
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
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Re: Disbar them... by John Hamilton on Oct 8th, 2007 @ 4:21pm
Actually, I think dismembering those lawyers would send a much more effective message, don't you?
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Re: Outrage is relative to image by Anonymous Coward on Oct 8th, 2007 @ 5:28pm
Of course. The car mechanic won't own their house if they complain.
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Torrent for those Files by Geneva Heaton on Oct 8th, 2007 @ 7:23pm
To further mitigate the Streisand Effect, here is a torrent link to those files, should they mysteriously fall off the Internet: http://recordsquest.org/?q=node/109
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by Anonymous Coward on Oct 8th, 2007 @ 7:50pm
Bwaahahahahaha. PWNT!
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Solution: anti-SLAPP motion to strike by Craig Combs on Oct 8th, 2007 @ 8:10pm
If some lawyer attempted to go after my client with this BS they would get an anti-SLAPP special motion to strike on their desk. My client would get his/her/its attorney's fees paid.
Such a motion is available in California and in other states as well.
Essentially, it is a way for the small guy to fight Strategic Lawsuits Against Public Participation (big companies trying to shut the little guy up by suing him) by giving other lawyers incentive to take the cases on contingency. If this shit happens to you, contact the EFF; they send out emails to lawyers across the country who may take your defense on contingency.
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Missing NDA by Randy on Oct 8th, 2007 @ 9:12pm
Too bad the lawyer didn't first send a NDA to get signed and returned. No signed Non Disclosure Agreement = no obligation to not share the enclosed unsolicited letter.
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Re: Abuse of the law by wmaclough on Oct 8th, 2007 @ 9:29pm
At least in CA, the law already does. If an attorney intentionally misrepresents the law or facts (not merely arguing for a change in law, but actively makes a false statement on the state of the law) he can be subject to censure by the State Bar. Likewise, an intentional misrepresentation of fact can be grounds for disciplinary action.
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Re: by Anonymous Coward on Oct 8th, 2007 @ 9:52pm
or how slow, depending on the deepness of the pockets of the defendant
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Just a thought... by Just a thought... on Oct 8th, 2007 @ 11:31pm
Well, if that's the law firm's belief, why not tell them that we copyrighted the letter 'e', and that any further communications from them should do withouth our copyright or else pay royalties or face a copyright infringment suit...
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Cease & Desist by John L. Lee on Oct 9th, 2007 @ 4:38am
I find a big ass .45 automatic works well for this purpose!
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Just another thought by Mike on Oct 9th, 2007 @ 4:56am
If you were to auction this letter on E-bay would you have to split the profits with the letter writer?
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they do have copy right by peter on Oct 10th, 2007 @ 12:47am
"the copyright notice" is the only copyrighted piece to text in the email
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Is this extortion by John on Oct 18th, 2007 @ 2:47pm
there is a monetary demand in the law firm's letter, directing payment for all of DirectBuy's legal expenses. Given the legally pathetic threat, made by a person of the Bar and claiming expertise in this area, does this not constitute extortion and possibly, given the recent decision re Microsoft and BestBuy, a violation of RICO - racketeering??
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Re: Re: Disbar them... by Anon on Oct 19th, 2007 @ 1:20am
If they are morons then they shouldn't be lawyers. Problem solved.
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Using the Legal Process by Rand on Oct 21st, 2007 @ 5:35pm
I find it sad the so many people will provide a knee-jerk reaction. Yes, as an IP attorney, I have to agree the copyright claim is overboard, although technically the letter would be protected. I have little doubt that a Court would find posting of the threat a fair use.
The better way to get back at the attorneys is to use their own forum against them. Since they are asserting that posting the letter would constitute an infringement, file a declaratory judgment against the firm in your local federal court seeking a declaration that posting the letter would be a fair use. The last thing the attorney wants to be doing is hiring a law firm in your home town to defend a lawsuit that makes him look stupid.
Additionally, add in a declaratory judgment claim that your use of the underlying action was a fair use - or any other defense. Not only is the litigation conducted on your home court, it also lets the judge know right off the bat that the attorney on the other side is a moron who likes to stretch his case a bit.
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