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.

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The Intellectual Property Asshole Competition

from the have-fun-with-it,-people dept

Now this ought to be fun to watch. We've written plenty of stuff about the ongoing legal fight between artist Shephard Fairey and the Associated Press. And, every time we write about it, someone always points out that Fairey is often just as bad as the AP. Despite being an "appropriation" artist, who regularly uses the works of others in his own work (something we think is great), he's also been known to legally threaten others for doing the same with his own work. So, it looks like someone has decided to poke both with a stick, to see who gets provoked first. That someone is artist Evan Roth. ChurchHatesTucker alerts us that Roth has launched his "Intellectual Property Asshole Competition" where he is selling, via his website, hand-painted version of both the Mannie Garcia/AP photo and Shepard Fairey's poster... and will see who is the first to send him a cease and desist. While we never think it's a good idea to infringe for the sake of infringement, this ought to be fun to watch.

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Blizzard Gets Super Aggressive With Cease & Desist Letters

from the way-to-piss-off-fans... dept

Bradley writes in to alert us to the news that, in the last month or so, the lawyers over at Blizzard have been quite busy sending out an awful lot of cease-and-desist letters for pretty much anyone having anything to do with the game World of Warcraft. Among those hit with C&Ds are iPhone apps, web comics and others. The latest involves a popular fan site, called WarcraftPets.com that was apparently selling some things to support the site -- which is apparently a huge no-no to the lawyers at Blizzard (though, it's not clear why they went after some free iPhone apps as well). The whole thing doesn't make much sense. Why is it so problematic that a fan site that's helping to promote the game can't make a little profit for helping promote the game? And, yes, when it comes to trademark law, there is a duty to protect, but that's only in the cases of clear confusion. If there isn't likely to be any confusion, there shouldn't be an issue.

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Newt Gingrich's Lawyer Displays Ignorance Of Both Twitter And The Law In Sending C&D

from the wow dept

It really was just a few weeks ago that we were told that lawyers knew better than to send a clueless cease-and-desist letter... and then we get this story. Apparently a group that is in favor of a certain law that Newt Gingrich opposes sent out a Twitter message that included the @newtgingrich username to stir up some interest in a petition they were working on. This is part of how you use Twitter to communicate with others and get attention from certain people. But apparently Gingrich's lawyer was upset that Gingrich's name was being "used" in a message in favor of a law Gingrich opposes, and sent a ridiculously bad cease-and-desist letter that the folks at the Citizen Media Law Project dubbed: "How to Make Your Client Look Bad, in Three Easy Steps."

First, the lawyer clearly didn't understand Twitter and how it works since using @newtgingrich is the equivalent of sending a public letter "Dear Newt Gingrich" -- which certainly wouldn't be an abuse of his name. Second, the lawyer not only didn't understand Section 230, but insisted that Tucows, the registrar behind the site that hosted the petition (and also republished the tweet) was somehow responsible for the content of the Twitter message: "continued display of the offending tweet 'can expose any and all involved parties (including Twitter, ContactPrivacy.com and/or TuCows) to substantial ongoing, and even personal liability.'" Of course, that's not even close to true. Then, on top of that, the lawyer basically tried to throw in claims on every law he could think up:

trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass (could Twitter trespass upon its own computer?), conversion, traditional fraud and wire fraud, breach of contract (i.e., Twitter's terms of service), violation of the Computer Fraud and Abuse Act, and even RICO violations.

All for a Twitter message. Seriously. So, what was that about lawyers knowing better than to send bogus cease-and-desist letters?

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Do Lawyers Know Better Than To Send Mindless Cease & Desist Letters?

from the if-only-that-were-true dept

Recently, we posted about how Twitter's open attitude towards third parties and its trademark was probably helping the brand gain acceptance for its sense of openness and fairness. In it, we noted that lawyers were often quick to send cease & desist letters because they can, and not because it makes good business sense. Tom O'Toole takes issue with this claim:

Today, in 2009, all lawyers dealing with online media -- and that includes trademark lawyers -- are well-aware of the challenges of reputation management. They know that any C&D they send could wind up on a hundred Web sites, adorned with ridicule heaped upon their clients. They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

If only that were true. If it were, we'd have a lot fewer people sending in example after example after example of lawyers being way too quick to pull the trigger on such reputation damaging cease and desist letters. We still get multiple examples of this happening every week. I do agree that a lot more lawyers are familiar with this, but it's certainly not all.

O'Toole also makes an interesting separate argument that Twitter is somehow different than a company like Monster Cable, because Twitter is only involved in "data" whereby Monster Cable makes tangible products, and thus has no network effects. He also suggests that, because of this, Monster hasn't really done much harm to it's business, and that every use of the Monster mark somehow diminishes the value of Monster's trademark. I disagree wholeheartedly. I'm also not sure how this impacts my original claim that aggressive defense of trademarks can harm businesses. Monster Cable has clearly hurt its reputation with its trademark aggressiveness. Just do a basic Google search on monster cable and look at how many of the results near the top are negative, often talking about Monster Cable's aggressive trademark claims. If you don't think that's scaring off plenty of customers, you haven't been paying attention to how customers do research. I'd argue that the value of Monster's brand is diminished a hell of a lot more by everyone trashing the company for being so aggressive than if it had just stayed quiet and focused on building a good product.

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Lawyers Realizing That Suing Gripe Sites Might Not Make Much Sense

from the it-took-this-long? dept

It looks like some lawyers may be realizing that suing so-called "gripe sites" (more commonly called "sucks sites") might not make very much sense (thanks to Bill Squier for sending this in). The lawyer basically points out what plenty of folks have been saying for years: these sites are usually perfectly legal. They don't violate trademark law, and almost every time such a case goes to court the company loses -- only adding more attention and legitimacy to the gripe site. Instead, the lawyer suggests ignoring the site is often the best course of action:

The best course to deal with a gripe site often is to do nothing at all. The site itself actually might have a little impact on a company's business and the ferocity of its venom might obscure the reality that it is only one of millions of sites that has little traffic and that is visited only by the disaffected, whose business is ultimately lost anyway. Also, if the target pays no overt attention to the site, its operator may lose interest in this particular cause and direct his or her ire to more recent, emotionally appealing, or reactive targets. Non-action can be the most difficult course to take where there is a demand that something must be done.

He also notes that sending a cease-and-desist is likely to create the opposite reaction, often encouraging the site to continue (though, while he mentions that cease-and-desist letters are likely to get posted to the sites, he doesn't mention that many site owners will use that to get more attention from others using a "they're trying to shut me down" alarm). Oddly, the lawyers' "final" advice seems like the sort of thing that shouldn't be "final" or a "last resort" but should be much closer to the top of the list:

Finally, the target might seek to engage the operator of the gripe site to find out just what his/her problem is and see if it can be rectified. This would be the cleanest, easiest, and cheapest solution. It might not work, but it has little downside risk and might, if not immediately successful, attenuate the ferocity of the attacks and might in the long run hasten the end of the site, by causing its operator's interest to wane.

Wait... speak to someone like a human and see if you can fix their problem? What kind of advice is that?

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Did Burger King Really Just Issue A C&D Through Twitter?

from the it-takes-two-hands dept

Now that it's legal to serve papers to someone through Facebook, Burger King has apparently sent a cease and desist via Twitter to the user "whoppervirgins" for an unauthorized use of trademark. "Whopper Virgins" is the latest multi-million dollar ad campaign from Burger King to hit the airwaves, featuring documentary-like ads depicting Hmong, Inuit and Romanian villagers eating burgers for the first time. Sure, "theBKlounge" account may not really be Burger King, or the C&D could actually be an in-character joke. But, really, did nobody at the agency think to simply grab the twitter account "whoppervirgins" to begin with? From the start, this campaign seems to have attracted criticism. In addition to flak for being "corporate colonialism," "cultural bullying" and "the worst kind of Ugly Americanism," this campaign has been ridiculed for not doing enough good SEO to support the campaign. In any case, perhaps Burger King purposely planned these strange moves, in order to generate fodder for bloggers to chew on, since in all honestly, I am really, really craving a Whopper right now.

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Multi-Level Marketing Company Threatens Blogger Who Writes Critical Post

from the just-because-you-don't-like-it,-doesn't-mean-it's-illegal dept

Over and over and over again, we hear stories of companies that simply dislike what others are saying about them online, and send over threatening legal letters with no legal basis. These cease-and-desist letters are mostly designed to scare users into giving in, because there's no law against someone criticizing you or saying something bad about you (assuming it's not untrue). The latest, sent in by Davis Freeberg involves the Everyday Finance blog. The blogger there was approached by a company called "Shop to Earn," which offers a multi-level marketing (MLM) system. The blogger wrote a post about it, which Davis Freeberg describes as "well balanced," though the blogger explained the weaknesses of the system and why he chose not to participate.

So what happens? Yes, of course, Shop to Earn got upset and sent Everyday Finance a legal nasty-gram demanding the posts get taken down. As Everyday Finance notes, it's likely this had something to do with the fact that the posts had made it up the Google search results list. The blogger at Everyday Finance tried to adjust the post, taking out things like the phrase "fatal flaw," but Shop to Earn said that wasn't good enough and Everyday Finance needed to take down the entire site. This is, quite clearly, bullying through cease-and-desist. It's about trying to shut up a negative review of their business model because they didn't like what it said.

And, it appears that Shop to Earn isn't just focused on the blogger at Everyday Finance. The company has also sent cease-and-desist letters to other blogs, which were also extremely critical of Shop to Earn's program (though, that link is also quite well-balanced, pointing out the key flaws to Shop to Earn's program). Apparently, Shop to Earn seems to think that any review of its program that is negative is somehow libelous, and will threaten bloggers with legal action. What it may quickly learn is that (a) someone giving you a negative review and pointing out the obvious flaws of your program is not defamation and (b) trying to threaten bloggers into taking down their site will simply call much more attention to all of those negative reviews.

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Canadian Real Estate Site Wants To Remain Unusable; Threatens Those Who Improve It

from the this-again? dept

In the past, we've written about various organizations who break out the lawyers immediately when someone else makes their own poorly designed sites work better. This has happened with sites like the Ellis Island site and a movie theater chain in the UK. In both cases, some folks who got fed up with the poorly designed official site stepped up and created a better interface to the data hidden within. That same situation appears to be happening in Canada. Joe writes in to let us know that the Multiple Listing Service in Canada (which is basically the core database listing homes for sale) has a poorly designed website. Some enterprising individuals in Toronto made a much nicer interface, creating a mashup that pulled in other data (such as Google maps info). Rather than, say, recognize how useful the better interface was and talk to the developers about how MLS could use that work themselves, it sent a cease and desist, forcing the site to shut down. The site's creators were doing this as a hobby to improve the usefulness of MLS's data. And now it's gone. That's no way to run a business.

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BBC Upset That Fans Are Knitting Dr. Who Characters

from the send-in-the-daleks dept

While many people are familiar with copyright issues concerning things like music, movies and software online, there's another community that also has been quite active: the knitting community. For a few years now there's been an ongoing battle between hobbyist knitters who have uploaded patterns that others feel are infringing on their copyrights. Now it appears that issue is touching on the tech/sci-fi community as well. Boing Boing points us to the news that a fan of the famed BBC show Dr. Who had created some knitting patterns of his own that would enable anyone to knit various characters from the show. This isn't a case where he was uploading someone else's patterns -- but he had created his own. The BBC, however, flipped out and told him to remove all such knitting patterns as they infringed on the BBC's copyrights and trademarks. This seems like yet another case of overly aggressive enforcement of intellectual property rights because someone can, not because it's a good idea.

It's nearly impossible to see how a fan getting people to knit versions of Dr. Who characters somehow diminishes the rights of the BBC. All it's doing is enabling fans (who are also into knitting) to express their fandom. If anything, the BBC should be encouraging this kind of fan support, rather than trying to stifle it and shut it down. It's stunning that after all these years, people still don't realize that helping fans express their feelings towards something is a good thing, rather than infringement.

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Then Again, Posting Cease And Desist Letters May Be Okay

from the never-trust-a-lawyer's-own-press-release dept

On Friday, I wrote about a lawyer, John Dozier, issuing a press release claiming that you could copyright a cease and desist letter, and suggesting that anyone posting such a letter could face huge fines. Dozier's firm was also the law firm who filed a lawsuit against a gripes site, accusing the site (not the individual contributors) of defamation. It's also the same lawyer who claimed that the HTML on his website was covered by copyright and banned people from viewing it. Given all of that, I certainly should have known better than to simply take this lawyer's press release at face value. Thankfully, Joe Gratz has helped clear up the situation. The lawsuit that Dozier was referring to was not the one that had originally gained attention over the question of copyrights on cease-and-desists, but a different and much more complicated case, which we wrote about last month. You can click through to see the details (it's too complicated to repeat here). However, as Gratz explains, this latest ruling in that case simply stated that, since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the copyright office, then the copyright holder had ticked off the necessary checkmark to move the case forward. That does not mean that cease-and-desists are automatically copyrightable. It does not mean that posting a cease-and-desist you receive is not protected under fair use. Also, in that same case, the judge later denied using the copyright claim to unmask the anonymous blogger they were trying to reveal. Of course, Gratz also notes that Dozier conveniently left that part out of the edited version of the court's decision he uploaded to his site. So, while it's still not a great decision, it's not as crazy as it originally sounded... and it will act as a good reminder not to take press releases like this at face value. Update: Paul Alan Levy at Public Citizen weighs in as well.

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

from the free-speech? dept

Back in October, we wrote about a law firm that was claiming a copyright on the cease-and-desist letters it sent out, and insisting that it was a violation to repost them. It's long been believed that cease-and-desist letters that have no new creative expression and are merely boilerplates are likely not covered by copyright. On top of that, preventing someone from copying a cease-and-desist letter or posting it on their own website seems like a pretty severe First Amendment violation. The group Public Citizen hit back against this law firm's claims, but surprisingly, a judge has now agreed that you can copyright cease-and-desist letters (thanks to Eric Goldman for emailing over the link). The news was announced in a press release by the lawyer in question, who claims this means he can now sue anytime someone posts one of his cease-and-desist letters. He also goes on to slam those who believe free speech means being able to talk about the fact that a company is bullying them:

"The publication of cease and desist letters is an easy way for scofflaws to generate online 'mobosphere' support for illegal activity and, until today, many businesses have been hesitant to take action to address some of the lawlessness online because of possible retaliation and attacks."

To which I would respond: "The copyrighting of cease-and-desist letters is an easy way for law firms to bully small companies who have committed no wrong, but who have no real recourse to fight back against an attempt to shut them up via legal threat. Until today, many companies who were being unfairly attacked by companies and law firms misusing cease-and-desist letters to prevent opinions from being stated, had a reasonable recourse to such attacks, and could draw attention to law firms that used such bullying tactics to mute any criticism." This is an unfortunate ruling and can only serve to create a serious chilling effect on free speech. Update: We've now posted an update, noting that the original press release appears to be an exaggeration, taking the court's decision out of context.

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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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