Copyright, Defamation, Bloggers, DMCA, Safe Harbors, Cease-And-Desists And Anonymity… Oh My!

from the we've-got-it-all-in-this-case dept

Well, here’s a lawsuit that’s got all the hot button issues going around these days, and yet has received very little publicity. Both Eric Goldman and Sam Bayard provide detailed legal breakdowns of what happened (and it may take a couple reads to grasp all the details), but let’s try to summarize (some of it’s good, some of it’s bad). Basically, there was a site that has a few anonymous bloggers posting about politics. One of those anonymous bloggers, going under the name “Tom Paine” posted something accusing the CEO of a company of something that the CEO believed was defamatory. The company sent the blog a cease-and-desist letter, demanding that Paine’s post be removed. That cease-and-desist letter was then posted to the blog by a different anonymous blogger, using the name “d2.”

Here’s where things get interesting. The company had registered the cease-and-desist with the copyright office, and then claimed that d2 was violating the copyright. We’ve seen a few other companies try to do this, and the idea that a boilerplate cease-and-desist letter is copyrightable is highly questionable — and, even if it can be covered by copyright, there are strong fair use arguments for a blogger being able to post it. Unfortunately, though, the court felt otherwise, and decided that just because the company had registered the copyright on the document, that’s all the evidence it needed to say the document was covered by copyright, and posting it could be considered infringement. If that stands, it could be disastrous to plenty of other bloggers (and the Chilling Effects archive) who post the ridiculous C&Ds they receive. Indeed, this ruling may prove to have a true “chilling effect” itself. Hopefully, though, a few more high profile cases of this nature will eventually have it made clear that posting a C&D is perfectly legitimate.

But, wait… there’s more! In claiming copyright infringement, the company didn’t just go after d2, but used the DMCA to subpoena for information on both d2 and Tom Paine — even though Tom Paine had absolutely nothing to do with posting the cease-and-desist, and was accused of defamation, not copyright infringement. Luckily, the court saw right through that one, and decided that there was no reason to identify Tom Paine over the copyright issue. And, of course, we don’t even get to touch on the questions concerning the rights to anonymity, as well as the safe harbors provided by the company that runs the blog concerning the speech of its users — all of which are a part of the case as well. So, if you’ve got some time and want to dig through all the gory legal details, go ahead. But the summary is that there’s a bit of good (in that a company that tried to misuse the DMCA to unmask an anonymous blogger was denied — even if it’s a bad sign that the company even thought to use the DMCA in this manner) and there’s a lot of bad (in suggesting that it may be infringement to post a generic cease-and-desist). I would imagine this is not the last we’ll be hearing of this case.

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Comments on “Copyright, Defamation, Bloggers, DMCA, Safe Harbors, Cease-And-Desists And Anonymity… Oh My!”

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Steve R. (profile) says:

Where is the Due Process

The statement “Unfortunately, though, the court felt otherwise, and decided that just because the company had registered the copyright on the document, that’s all the evidence it needed to say the document was covered by copyright” is chilling in its implications. Just because something is “registered” it is not proof of an ownership right. This is akin to patent examiners issuing patents based on the submission without doing the prior-art research. One would think that the Court would examine the validity of the copyright claim.

By the way, did the court publish its opinion and can it be posted here?

Anonymous Coward says:

Re: Where is the Due Process

Based on the U.S. Copyright Office a broad range of things are copyrighted as long as they are published. Publishing the work is required but registering it is not.

Excluded from copyright (from U.S. Copyright Office):

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Based on this the C&D letter is eligible for copyright IF the text added to the boilerplate text is enough to consider that it has some “original authorship”.

What the Court SHOULD be doing is looking at whether the posting of the letter falls within fair use or not. The fact that it is registered should NOT be the sole determining factor, especially since registering it does not do anything other than record a snapshot of the work at a specific point in time.

I keep hoping that the more and more the DCMA is abused like this the lawmakers will wise up and throw it out.

I'm confused (profile) says:

Help me, Mike,

I’m having trouble with the copyright infringement argument on posting the C&D letter so maybe I don’t fully understand how you ‘infringe’ on a copyright.

If the blogger posted the C&D and properly annotated that the letter is a correspondence from the company isn’t that analogous to citing another person’s work in a research paper? The poster didn’t claim authorship of the letter did he? Did he present the letter as his original work or merely displayed it in its original context?

It seams to me that you should be able to reference copyrighted material if you give proper credit to the originator. If that’s not the case then you could argue that nearly all scholarly research, news reporting, blogs etc are violating someone’s copyright.

Help me understand.

Chris Brand (user link) says:

Help me

If you post a copy of a work without the author’s permission, that’s either copyright infringement or fair use, because you’re reproducing the work and “reproduction” is one of the exclusive rights that the Copyright Act gives to rightsholders.
(There are a few caveats to do with assigning, and expiration of, copyrights, so don’t take this as legal advice :-))

Your idea of what should be legal doesn’t match the Copyright Act.

Darksurf says:

God these people make me sick

What happened to freedom of speech? Just ’cause some says something bad about you and it hurts your rep doesn’t give you a reason to politically and what I’d call “illegally” trap them. For all we know the guy may have been right, and they just wanted to shut him up. Thats all we need is another company gone corrupt. I say if you do something that shows your ass, then thats your fault, don’t cover it at the expense of someone else.

d2 for now says:

Timeline and other notes.

Thanks for the attention, but the timeline is a bit skewed from how your report it. I posted the scan of the letter, they filed suit and a subpoena, we answered with a motion to quash, and *THEN* they registered copyright on the takedown letter.

Doing this covered a base for them. The letter, since a copyright was registered, met the legal minimum (prima facie, or face value) of the standard for copyright, which the court deemed was all that needed to be decided to answer our motion to quash the subpoena.

Melaleuca would have to file a copyright lawsuit for this to continue to a point where Fair Use, copyrightability, or even the absurd issue of how I could have diminished the merchantability of a letter addressed to me by publishing it. If I lose fair use (damn unlikely), I’m still stuck with the opinion that the letter is worth about a buck and a half less than a cup of fair-trade coffee at Starbucks. Seriously, is anyone else in the market for their own copy of a takedown addressed to me? At least before it becomes (in)famous, I doubt it.

By all means, folks: spread the word on this case. And thanks.

Alfred E. Neuman says:

Re: Timeline and other notes.

“I posted the scan of the letter, they filed suit and a subpoena, we answered with a motion to quash, and *THEN* they registered copyright on the takedown letter.”

Typically the courts do not allow retroactive enforcement,and for good reason. In addition, I do not understand why the court looks upon the act of registration as a pivotal point in this case.

John Duncan Yoyo (profile) says:

Ok so what you need to do to get a legal letter copyright protection is to write something original. Perhaps a haiku or limerick form of the letter’s content.

Does it have to be written? Perhaps the lawyer in question needed to draw cute little bunnies on the letter and to have the copyrighted or use his Garfield stationary proclaiming that he hates mondays since I am sure that has been copyrighted.

Oh and he needs to submit a copyright request prior to mailing the letter.

Anonymous Coward says:

Re: Re:

it doesn’t need to be written to be copyrighted, it only needs to be “in a fixed form”.

From the U.S. Copyright Office:

Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

  1. literary works;
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works
(c) pedant says:


The US Copyright law says, in section 102, that original works of authorship are protected as soon as they are fixed in tangible form. The standard of originality is very low — basically it can’t be copied from some prior work — so most legal letters will qualify for protection. “Boilerplate” is usually learned phraseology, not verbatim copying.

Section 411 of the Copyright law says that registration is necessary to bring suit for infringement, not to merely get protection. Registration can be sought after the alleged act of infringement. So there is no retroactive enforcement here and the plaintiff followed an allowable procedure. They deserve to lose on the merits based on a fair use defense, but apparently all that has happened so far is that a motion to quash a subpoena was denied because registration made the case a proper subject for the court to take up.

KingCast (user link) says:

A variation on the anonymous blogger safe haven

I’m all about anonymous comments, but what if the anonymous blogger ascribes someone else’s actual name (i.e. a living, known, specific identifiable person) to a post in an attempt to mislead?

Interesting, given the dirt already going on in that double homicide case.


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