The Copyright Of Cease-And-Desist Letters

from the ain't-much-there dept

It's quite popular for some bullying lawyers to put a notice on their cease-and-desist letters, declaring that they are confidential and covered by copyright, and that any attempt to publish it or share it with the world will be viewed as copyright infringement. In many ways, this is an incredibly weak attempt by lawyers to avoid the old "Streisand Effect," whereby their cease-and-desist letter becomes the news and draws a lot more attention to what they wanted ceased and desisted. But does that claim mean anything? Typically, not at all. There's typically nothing in a cease-and-desist that would qualify as new and unique enough expression to be covered by copyright (there could be exceptions), and posting a cease-and-desist publicly would most likely be seen as fair use in almost every situation imaginable.

There was, of course, some buzz a year and a half back when a lawyer claimed to have won a copyright ruling over a cease-and-desist letter, but the details showed that was a gross exaggeration. The court had merely noted that the original had in fact been registered by the copyright office (a basic formality).

Still, this doesn't stop law firms from continuing to use this practice. Michael Scott points us to quite the story by the Citizen Media Law folks, concerning a massive cease-and-desist letter from the owners of one newspaper to another. The C&D was questionable enough in the first place. Basically, someone from the San Diego Reader asked for some info from Platinum Equity, a buyout firm that had purchased the competing San Diego Union-Tribune. It involved a sexual harassment lawsuit that Platinum had been involved in, which seems like a perfectly reasonable news story on which to request some information. Platinum did not see it that way and had its lawyers send an amazingly long C&D (the original was six single-spaced pages, which sure beats the typical one-pager found in most C&Ds).

The whole story seems bizarre, as the original request seemed perfectly normal for a news publication, and the company could have come back with a simple no comment. Sending a six page C&D practically screams out for attention -- and it's attention they're getting, despite the claim that publishing the letter would be see as copyright infringement. There's almost no chance that would actually get anywhere in court of course -- especially when it's newsworthy and the information was published by a news publication. Still, it does make you wonder why lawyers still think they can get away with such bullying tactics.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Jul 29th, 2009 @ 7:37am

    While perhaps such a letter is designed to impress the client that their counsel is a "bull dog", it is not likely to impress other members of the legal profession, nor is it likely to intimidate them in the least.

    Interestingly, I am less concerned about the attempt to place the letter under the umbrella of copyright law, and more concerned about the implications of a law firm trying to unilaterally impose an obligation of confidence on the recipient without the recipient's permission.

    Pesonally, I would return it to the sender with a clear statement that the attempted imposition of an obligation of confidence is without merit, that the letter has not been read, and that the letter has been turned over to counsel for appropriate disposition.

    As for copyright implications, fair use is an obvious defense, but I would not mention that in a rejoinder.

    One final consideration...SLAPP threats are not readily embraced by the judicial system, and particularly in the context of news reporting. This too I would not mention until such time as a letter is sent that does not seek the unilateral imposition of a confidentiality obligation.

     

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  2.  
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    Yakko Warner, Jul 29th, 2009 @ 8:14am

    Simple bluffing?

    Still, it does make you wonder why lawyers still think they can get away with such bullying tactics.

    One possible reason I can think of is, they're betting their opponents won't find the issue worth the cost in time and dollars needed to fight their legal challenge and will just go away. I would guess it works often enough, though, to justify it as a viable option.

    IANAL; I don't know if it's illegal or unethical or just annoying.

     

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  3.  
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    Dark Helmet (profile), Jul 29th, 2009 @ 8:38am

    Re: Simple bluffing?

    "IANAL; I don't know if it's illegal or unethical or just annoying."

    I'm confused. If you're unsure if it's illegal, unethical, or just annoying, then why do you anal?

    More importantly, is see people saying "IANAL" all the time. Why should we care if you're taking it up the pooper?

     

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  4.  
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    Sean T Henry (profile), Jul 29th, 2009 @ 8:45am

    Do the opposite

    Maybe all websites should just add a clause to the TOS and Contact Us pages that state something along the lines of:

    "By initiating correspondence with(Company name)implicit consent has been given to reproduce and distribute any and all information contained in said correspondence. This rule will not apply if a Nondisclosure Agreement was signed prior to the date correspondence was sent."

     

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  5.  
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    Anonymous Coward, Jul 29th, 2009 @ 9:06am

    As I recall, the law in the U.S. is that if you receive a letter by USPS, that letter becomes your property and you are free to do with it as you choose.
    Also, by sending an unsolicited letter, they cannot create a contract of confidentiality unilaterally without providing some benefit to you which you then choose to accept. Merely accepting the letter does not obligate you.
    As a side note, if you receive something of value by unsolicited mail, it is yours to keep without payment. They can't just send you something and then require you to pay or return it.

     

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  6.  
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    Anonymous Coward, Jul 29th, 2009 @ 9:30am

    Re: Re: Simple bluffing?

    Grow up

     

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  7.  
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    Anonymous Coward, Jul 29th, 2009 @ 9:37am

    Re: Re: Simple bluffing?

    it's to get us hot and bothered

     

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  8.  
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    Dark Helmet (profile), Jul 29th, 2009 @ 9:43am

    Re: Re: Re: Simple bluffing?

    No.

     

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  9.  
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    Anonymous Coward, Jul 29th, 2009 @ 9:50am

    Re: Re: Re: Simple bluffing?

    People don't stop playing because they grow old, they grow old because the stop playing.

     

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    LostSailor (profile), Jul 29th, 2009 @ 10:22am

    Shepard Fairey Irony

    In the counter-complaint AP filed in the Shepard Fairey lawsuit, there is this allegation that Fairey (through his attorney) did the exact same thing when he sent a C&D letter to a Texas artist who used one of Fairey's images (transformed).

    Here's the quote from the C&D letter (from the AP's filing):

    Finally, I want to call your attention to California Civil Code 985, which reads in part "Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law." Accordingly, I do not expect to see this letter in a public forum and you are not authorized to publish it, including (without limitation) by putting it on the Internet. This also applies to your posting of my Client's first cease and desist letter online. Demand is also made that you remove your public copies of by Client's correspondence.


    The AP filing can be found here. The quote comes from paragraph 121 on page 35.

     

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  11.  
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    Mike Masnick (profile), Jul 29th, 2009 @ 11:08am

    Re: Shepard Fairey Irony

    I wouldn't call that "irony" exactly. Fairey is known to be an abuser of copyright himself and quite aggressive in going after others (which is just lame).

     

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  12.  
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    LostSailor (profile), Jul 29th, 2009 @ 1:08pm

    Re: Re: Shepard Fairey Irony

    Okay. Maybe "ironical" then.

     

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  13.  
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    Anonymous Coward, Aug 8th, 2009 @ 12:19am

    Lawyers ....

     

    reply to this | link to this | view in thread ]


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