Copyright in cease and desist letters? Not quite.
The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient (Case No. MS-07-6236-EJL-MHW). The copyright decision, in pertinent part, has been made available by Dozier Internet Law, and is the first known court decision in the US to address the issue directly. The Final Judgment calls into serious question the practice of posting lawyer cease and desist letters online, a common tactic used and touted by First Amendment groups to attack legal efforts at resolving everything from defamation to intellectual property disputes.
In September 2007, Dozier Internet Law, a law firm specializing exclusively in representing business interests on the web, was targeted online by “free speech” and “public participation” interests for asserting copyright ownership rights in a confidential cease and desist letter sent to a “scam reporting site”. The issue generated online buzz in the US with commentators such as Google’s lead copyright counsel and Ralph Nader’s Public Citizen attacking the practice as unlawful, and Dozier Internet Law responding. Bloggers from around the world soon joined the debate, reeling at the thought of losing a valuable counter-attack tool.
This sounds about as bad as a rule of law can get, on as many grounds as you can think of (creative work? First Amendment? fair use?) and the way it’s being spun is going to cause an uproar on the Internet — already beginning.
This is not a new concept. But how accurate is the spin? Reader Chris, who had more time than I did tonight, read the opinion, and writes this in the comments:
I just read the decision – at least the parts that Dozier posted online. Unsurprisingly, the case HARDLY stands for the broad proposition cited in the press release.
There’s no analysis in the decision of whether the letter is truly copyrightable, merely an assumption that since the letter was registered with the Copyright Office, a prima facie case has been met. Interestingly, Dozier notes this on their website: “Dozier Internet Law notes that a US copyright registration is usually “rubber stamped” and obtained on an expedited basis in about five business days.”
A lot less shocking than I first thought, based on the press release. And not at all shocking just how unethical this law firm is. (This post has been revised.)
Reasonable minds could disagree on whether this C&D was sufficiently original to enjoy copyright protection, but the magistrate judge’s hesitancy to examine the merits of the claim is disquieting, especially in this context where anonymous speech (rather than anonymous piracy) is at issue. Additionally, the court failed to consider fair use. One could argue that posting a C&D like this is always, or almost always, going to constitute fair use, and so a DMCA subpoena should not issue based on its posting. The case that comes to mind is Online Policy Group v. Diebold, where the court held that portions of Diebold’s email archive were so clearly subject to the fair use defense that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” In that case, fair use rendered a takedown notice defective (and made the sender liable for material misrepresentation). It is not a long stretch to argue that fair use could bar issuance of a subpoena, especially when the party seeking it must submit both a copy of a valid takedown notice and a sworn declaration that “the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer.” 17 U.S.C. § 512(h)(2)(A), (C).
Then again, fair use is an affirmative defense, and so far courts have held that, in order to obtain a subpoena under sectin 512(h), a copyright holder need only plead a “prima facie case” of copyright infringement — that is, (a) ownership of a valid copyright; and (b) unauthorized copying. In such an analysis, there is no room for a fair use challenge. The question remains, however, whether this minimal standard does enough to protect the First Amendment rights of anonymous posters when copyright and First Amendment interests clash. The better view is that courts should impose a heightened standard of review before issuing a DMCA subpoena when the allegedly infringing activity is speech, or part of a larger pattern of speech. (Note that this will not be the case in all, or even most, online copyright cases. See, e.g. Sony Music Ent. Inc. v. Does, 326 F. Supp.2d 556, 564 (S.D.N.Y. 2004)).
I agree with the “better view” here. Prima facie copyright registration should not be a license to saddle bloggers or others with massive legal fees for what are clearly meritless, indeed abusive, legal claims.