Quite interesting to see how people respond to this sort of thing when it’s played out this way — in particular, by posting the back and forth between someone making threats that are not, as we say, well taken, and the one not taking them very well. For example, in the comments to Pat’s page with the correspondence on it, one person asks, “Iâ€™m a bit puzzled why Pattericoâ€™s attorney has not raised a Fair Use defense. Maybe because Carlson has not yet raised a cogent argument for their removal?” Not long after, another commenter — evidently a knowledgeable lawyer — answers astutely:
Thereâ€™s no need to raise a fair use defense because fair use is just that â€“ a defense. The defendant is arguing â€œYes, I did violate your copyright, but the violation is excused.â€
[He] doesnâ€™t even need to get that far. In order to collect statutory damages you need to register your copyrighted work. No registration means no statutory damages, only actual damages.
If he even wants actual damages he needs to first register the work as a prerequisite to filing suit.
Until he registers his work there is no case, so no need to raise a defense at this time.
No need to ever raise a defense in an email, pretty much. Your client may be impressed if you trot out the full scope of your legal thinking in correspondence, especially pre-litigation correspondence, with an adversary, but doing so is a waste of time and money, shows at least some version of your hand and violates the rule that less is more. Better to use these moments to elicit admissions, extract facts and corner your adversary than to score points that will not be acknowledged or appreciated.
That’s how we do it around here anyway. On the other hand, there is a time for defenses to silly trademark and copyright claims — like just last night, for example, when we filed this in a case that is unrelated except in one sense: Someone thinks the intellectual property laws are tools for censorship or, worse, knows they aren’t but sells a client on the idea that they can be.
That. Won’t. Work. Not if I can help it. And sometimes, you know, I do.
As Glenn Reynolds asks, “I mean, how dumb do you have to be these days to think Hey, threatening Patterico is a good way to make this thing go quiet?”
UPDATE: Spot-on analysis here, too!