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.

Filed Under: cease and desist, copyright, streisand effect

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  1. identicon
    Not Moby, 28 Jan 2008 @ 2:03am

    Forest fires burn everything

    A forest fire is usually started by a single spark, a single act. Years ago, the message was to act with personal responsibility. One way it was personified was by Smokey The Bear. He had a famous Tagline, "Only you can prevent forest fires". The effort was to deliver a simple message: Suppress any and all fires through education, and assist them to be cognizant of their immediate actions as well as downstream actions.

    Forest fires are not pretty. They affect more than just the trees, but also affect private citizens, businesses, government personnel, and ecosystems.

    It's great to observe what comes out of efforts of weaving together the offline world into the online world. Possibly the real problem probably isn't the copyrighting of a Cease-And-Desist letter, but rather somewhere, someone is trying to maintain a business model without a feedback mechanism, return policy, or focus on customer satisfaction in place. These all can create sparks which if not addressed could start a mighty big fire. It's not tough to imagine the company's website was listed alongside a blog filled with people's personal experiences. These experiences could be likened to sparks on kindling.

    Instead of seeing the commentary as constructive critisizm to potentially better the company, perhaps that company decided to pursue legal action. Adding fuel to the fire.

    Point is, with efforts like this, a more constructive way to find win-win-win situations is almost always outside of the legal system. When you go down the legal path, you guarantee win-loose. It may be helpful to consider reaching out to one of the fine consulting companies that may show up when you plug "corporate intelligence" into a search engine.

    Smoky The Bear says "If you start a fire, put it out."

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