Cease-and-Desist letters as self-executing copyright bombs

Techdirt reports (thanks, Pennywit!) on a law firm that tells recipients of its questionable “C&D” letters that if they dare post them, they’ll be liable for copyright infringement. This is the law firm, and this is the letter. And this is the response. (And here’s the definitive treatment, via the Citizen Media Law Project).

A very good lawyer taught me, as a young pup, that you should never put anything on your legal stationery you’re not prepared to use, or see the other side use, as an exhibit to a motion — i.e., ask yourself, “What will the judge think when he reads this?” Now the question is a lot broader, as is the advice: Don’t write a so-called “lawyer’s letter” that you’re not prepared for the whole world to see.

Some more homey advice: Don’t make threats you can’t back up. And don’t try making a bomb just to have it blow up in your face.

UPDATE:  The other shoe drops.  Are you moved?  Pennywit writes:  “I’m actually quite surprised at the intense personal tone of parts of it; wouldn’t even a minimum amount of professionalism mandate a certain detachment?”

Originally posted 2007-10-13 23:50:07. Republished by Blog Post Promoter

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

5 thoughts on “Cease-and-Desist letters as self-executing copyright bombs”
  1. I thought copyright protection is secured upon creation of the work (in this case, the C&D letter). Am I mistaken? Registration is no longer a requirement for copyright protection.

    The irony is if someone reprints your letter, then you may actually meet the “publication” criteria for copyright protection, too–that you “published” the letter to the recipient with intent for redistribution. However, does such a publication confer the rights to the recipient to publically perform the copyright protected work? I don’t think so …

    IMHO, IANAL, etc., a C&D letter ought to receive copyright protection as soon as it’s authored, and publishing such a letter in whole (sadly) should constitute an infringing use. Of course, Fair Use should also apply here and quoting select parts of the copyrighted work (the C&D letter) for purpose of commentary ought to be fair use–but reproduction in whole is certainly infringing.

    This is why I’m so glad I’m not a software developer and lawyer–lawyers can’t make up their minds–computers don’t have one. You are either right or wrong, and the computer tells you so.

  2. Copyright does indeed vest as soon as the work is fixed, but, oddly enough, you have no right to sue for infringement (or to collect attorneys’ fees or statutory damages) unless and until you have a registration.

    You are also right that a letter from A to B is technically protected by copyright (though, again, without a registration that’s not much protection), Dossy. But it is necessary to go through the fair use analysis under copyright law to understand why publication would in fact be permitted, i.e., not actionable.

  3. What I’d like to know is whether it’s “enough” protection to effect a DMCA takedown notice. Or, as you say, reproduction of the C&D letter in whole meets fair use criteria.

    I guess until something like this is tested in a court of law, we’ll never really know for sure. Thanks for kicking the idea around with me, though.

  4. CMLP’s pat assertion that republication of the letter “would be fair use” is a bit conclusory. As you mentioned to Dossy, below, fair use analysis is a process, not a simple assertion. Stupid of the firm, though, to send a letter saying that republication of the letter wold result in “further legal action” for copyright infringement without taking care to register the copyright first. They could still register it later and sue–but no statutory damages, and no costs/fees, and I doubt they’d be able to show much in the way of actual damages.

  5. Thanks for this post, Ron. Most enlightening and symptomatic, I think, of the problems we are all experiencing as a result of the shift in the means of artistic production and distribution (i.e., Radio Head & my own much less successful but nevertheless working artist and musician friends here in Los Angeles.

    Fear seems to be the primary driver of the recording industry’s attempts to protect its “turf” — an emotion that interfers with the higher cognitivie functions necessary to solve new technological problems with new business methods.

    I’d categorize the type of dispute you chronicle here (together with the ones Mr. Dozier is fighting) as forms of cyber-bullying.

    Perhaps more pernicious a form of consumer bullying is addessed by my recent post on the RIAA’s $200K-plus jury verdict agaisnt a single mother of two with an income of approximately $36K/year.

    I’d love to hear what your readers say about my abbreviated response to that verdict here: http://www.ipadrblog.com/articles/ip-adr-dictionary/.

    Thanks as always. I’m a daily and much appreciative reader.



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