Cease and Desist, Copyright and Fair Use

Filed as Features on January 28, 2008 9:15 am

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On Friday, an article appeared on Techdirt that struck fear into the hearts of many of us who follow copyright issues on the Web. According to a press release, a law firm had successfully established copyright in a cease and desist letter and could, in turn, use that to prevent others from republishing it.

The tactic of publishing cease and desist letters has a rich tradition on the Web. Sites that have found themselves bullied by larger companies have used the technique to turn the tide without going to court andChilling Effects was brought into existence solely for the purpose of publishing cease and desist letters as well as DMCA takedown notices. There has also been some questionable use of the technique as The Pirate Bay has published many cease and desist letters to ridicule those who have fought against them.

However, as the dust has settled and more details of the case have come to light, many of us have breathed a sigh of relief. As others have begun to more thoroughly read the full decision, it is clear that the courts ruling is far from a clean-cut or as life altering as previously thought.

Background

Contrary to popular understanding, the decision does not deal with a recent case involving the Dozier Law Firm and the Public Citizen. The confusion is because the press release, linked above, is from the Dozier Law Firm and John W Dozier Jr., Esq. has been actively promoting the ruling.

Instead, the case actually deals with the site 43rdStateBlue.com (43SB) and, the company Melaleuca, which sells wellness products, and the company’s CEO, Frank Vandersloot.

A regular user of 43SB, named “Tom Paine”, posted some comments about both Melaleuca and Vandersloot that were allegedly defamatory. The company sent the site a cease and desist letter. The site complied but, according to their FAQ on the topic, decided to post a copy of the letter in order to explain why they were censoring the article. They did this through a scan of the letter itself by using the screen name “d2″, according to the ruling.

Melaleuca claimed copyright infringement in the posting and sought a subpoena under the DMCA (17 U.S.C. § 512(h), to obtain any information about both “d2″ and “Tom Paine”, believing that they were the same person. They sent the subpoena with 43SB but the site moved to quash the subpoena.

In a ruling in November, the judge in the case both granted in part and denied in part the motion to quash. The judge ruled that the site had to surrender the information regarding user “d2″ citing that there was prima facie evidence for a copyright infringement case, but did not have to surrender the information for “Tom Paine”, the theoretical target, since there was no evidence that the two people were one and the same.

As of right now, no lawsuit has emerged from the case and no further action has been taken against either “Tom Paine” or the 43SB.

The Problem With the Hubbub

The case has generated a great deal of excitement largely due to the Techdirt article, linked above, and the press release it referenced. However, in all of the excitement, several key points were lost.

  • The case does not involve the Dozier Law Firm in any way and it is not the famous case involving them and their copyright claims on cease and desist letters.
  • The judge did not actually rule directly on the copyrightability of cease and desist letters, only that the case met the requirements for a subpoena.
  • The ruling did not award any damages or even weigh a potential fair use issue. In fact, the judge said “the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena”
  • As of this writing, no lawsuit has been filed against 43SB, meaning that the actual claim of infringement remains untested.

In short, for those who would seek to post a cease and desist letter, this ruling is something of a non-event. All it does is state that, should you post a cease and desist letter on your site, your host can be forced to reveal your information. It says nothing about the more involved arguments of fair use, copyrightability and certainly doesn’t predict what would happen in a specific case.

In the end, very little changes with this case and we are forced to wait even longer for a more thorough analysis of the issues before we can draw any meaningful conclusions

Best Practices

When you receive a cease and desist letter, the best practice is typically to comply with it as soon as feasible, at least until you are able to speak with a qualified attorney who tells you that it is acceptable to ignore it. Depending on your situation, there are likely many attorneys out there that will assist at reduced or no cost, a likely good place to start would be the Electronic Frontier Foundation.

Regarding the posting of cease and desist letters, it is wise to assume that they are protected by copyright and that one could be sued for infringement for posting the entire work. With that being said, there are ways to reduce infringing of the work, including posting only relevant portions of the material, adding your own commentary and making sure that the use is not commercial.

Though you can not guarantee that someone who has filed a cease and desist letter will not file suit or even that they will not prevail should the case go to court, by doing the best that you can to ensure that the use is as “fair” as possible, you reduce the risk of both.

In short, treat a cease and desist letter as if it were any other copyrighted work, but remember that it is coming from someone already agitated about another infringement. After all, a person or company that sends one notice is more likely to send another if prompted.

Conclusions

In my experience, the only times a company opposes the posting of a cease and desist letter is when they are doing something they want to cover up. When a company is acting within both ethical and legal bounds, they tend not to care if their letters are posted.

Proof of this is on the Chilling Effects Web site. Their database contains over 2000 notices, most of them linked and cited for easy browsing. It is a great resource for anyone interested in this area of the law and would be a natural lightning rod for these types of issues.

However, after five years, the site is still going strong.

The benefit of strict copyright protection in cease and desist letters is not to protect a creative expression, but to prevent the Streisand Effect from taking hold. Without the ability to keep the cease and desist relatively secret, the news of the threat could spread the original infringement, whatever it might be, farther than it ever would have reached otherwise.

Like anything else, the Streisand effect can be used for good and for evil, but so can strict copyright protection in cease and desist letters. In the end, it will be up to a judge and/or jury to weigh the merits of the case and decide what the law says and how it applies.

However, that has not happened yet and, until that time, all we can do is be safe and use common sense in order to prevent future confrontations.

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