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Court Says You Can Copyright a Cease-And-Desist Letter

ScuttleMonkey posted more than 6 years ago | from the chilling-day-for-free-speech dept.

The Courts 349

TechDirt has a follow up to a case they covered back in October where a law firm was trying to claim a copyright on the cease-and-desist letters they sent out. Public Citizen poked a number of holes in this claim and invited the lawyers to "try it." Well, unfortunately the lawyers decided to bite and what's more, they actually got a judge to buy it. The news was announced by the victorious lawyer who now claims he can sue anytime someone posts one of his cease-and-desist letters. "The copyrighting of cease-and-desist letters is an easy way for law firms to bully small companies who have committed no wrong, but who have no real recourse to fight back against an attempt to shut them up via legal threat. Until today, many companies who were being unfairly attacked by companies and law firms misusing cease-and-desist letters to prevent opinions from being stated, had a reasonable recourse to such attacks, and could draw attention to law firms that used such bullying tactics to mute any criticism."

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349 comments

yes (1, Funny)

doyoulikegoatseeee (930088) | more than 6 years ago | (#22192308)

but can you copyright...FIRST POST

yes (-1)

Brian Gordon (987471) | more than 6 years ago | (#22192336)

but can you copyright...SECOND POST

Re:yes (5, Funny)

dreamchaser (49529) | more than 6 years ago | (#22192340)

You will both be hearing from my legal team, as I have in fact already copyrighted both first and second posts. Oddly enough, we skipped 3 and went straight to 5.

Re:yes (0, Offtopic)

Anonymous Coward | more than 6 years ago | (#22192854)

Profit?

Overrule-able? (2, Insightful)

Anonymous Coward | more than 6 years ago | (#22193084)

The judge might be over-ruled by a higher court, that takes into account that generic cease-and-desist letters have existed for many years, and the basic form is public-domain, and a copyrighted work is not supposed to be a major plagiarism of someone else's work. It's supposed to have a significant amount of original material in it. While modern DMCA cease-and-desist letters certainly fall within the period before copyright expires, they are mostly very likely to be plagiarisms of far older letters on other subjects.

not as important as summary makes out (5, Insightful)

joss (1346) | more than 6 years ago | (#22192312)

The actual text maybe copyrightable, but one still has fair use, one can excerp bits and rewrite other parts. This ruling does not stop people drawing attention to the fac that they are being bullied. It's daft but its not fatal.

Re:not as important as summary makes out (4, Insightful)

Homology (639438) | more than 6 years ago | (#22192454)

The actual text maybe copyrightable, but one still has fair use, one can excerp bits and rewrite other parts. This ruling does not stop people drawing attention to the fac that they are being bullied. It's daft but its not fatal.

But it surely will make the bullied thinking about even quoting pieces of the cease-and-desist-letter since who will decide what is fair use? Perhaps the bullied will be bullied with another cease-and-desist letter?

Re:not as important as summary makes out (5, Interesting)

xk0der (1003200) | more than 6 years ago | (#22192568)

Can I like, not open the cease-and-desist letter and tell the judge that since I didn't open the letter so that I do not violate copyright? Reason being, I too write such letters, and since I didn't opened the letter, I have the right not to "cease-and-desist"? Since I can never know what is inside the letter, and I really do not want to know, so that my creativity and originality while writing such letter is not affected (corrupted?)? .. I'm exempted, am I?

Court orders and judgments too should be copyrighted, any other judge, if he/she is not creative enough to craft his own flowery words for the judgment should be tried for copy-right violations!

Re:not as important as summary makes out (-1, Troll)

ShieldW0lf (601553) | more than 6 years ago | (#22192910)

The answer is simple.

Fuck the court. Kill the judge and the lawyers too.

Hanging?

Re:not as important as summary makes out (2, Insightful)

Lavene (1025400) | more than 6 years ago | (#22192536)

Disclaimer: I'm not a US citizen.
If I get something in the mail I have not asked for I can do what ever I bloody want with it. No one can send me a letter then claim some 'rights' to it? I have not accepted any license or whatever as I do when I actively acquire something like a book or a CD. Of course, if they put an EULA on the envelope saying "By opening this seal..." they give me the option to not read it and hence as a legal notice it would fail.

I guess this is one of those "Only in the USA" kind of things...

Re:not as important as summary makes out (1)

zantolak (701554) | more than 6 years ago | (#22192630)

Well, you'd better not open that seal. Cut open the other end!

Re:not as important as summary makes out (2, Informative)

fastest fascist (1086001) | more than 6 years ago | (#22192690)

Unfortunately, copyright in it's base form isn't negotiated on a case-by-case basis. If someone sends you an unsolicited copy of a copyrighted piece, whatever that may be, that doesn't give you the legal right to make new copies. So whether or not you asked to be sent the material in question has no bearing on the matter. Lastly, IANAL.

Re:not as important as summary makes out (1)

cpt kangarooski (3773) | more than 6 years ago | (#22193086)

I don't know how things work in your country, but here books and CDs generally are not licensed at all. When you buy one, you own it. The work contained within is unownable, but may be copyrighted. The copyright, while it subsists, may prevent you from doing anything you like with the work. An analogy would be that when you buy a car, you own it, but you're still not allowed to break the speed limit, if such a limit applies. Software is really the only thing that is commonly licensed in the consumer market, and the odd thing is that there is usually no reason to do so. All that it accomplishes is to confuse people into thinking that licensing is important, common, and often a good idea, when none of those this is really true.

Re:not as important as summary makes out (1)

lucifron (964735) | more than 6 years ago | (#22192574)

You certainly _don't_ want to modify a named party's statement in any way before publishing it; that's a whole lot worse than copyright violation.

So sue me (1)

Sen.NullProcPntr (855073) | more than 6 years ago | (#22192904)

Hey everyone,
Just got a comment by a party known as "lucifron" saying: Any modification to "a named party's statement" before publishing it is "a whole lot worse than copyright violation" and something you "certainly _don't_ want to" do.
But I don't see anything wrong with quoting excerpts from a copyrighted text.
-SNPP

Re:not as important as summary makes out (1, Informative)

Anonymous Coward | more than 6 years ago | (#22192698)

From http://www.dozier-internet-law-pc.com/ [dozier-int...law-pc.com] the ruling

Sometime prior to April 6, 2007, an anonymous individual with the username of "Tom Paine," posted comments at the website, www.43rdstateblues.com ("Website"), regarding Melaleuca, Inc. ("Melaleuca") and its CEO, Frank L. VanderSloot. On April 6, 2007, Melaleuca, through its General Counsel, Ken Sheppard, sent a letter to an individual Melaleuca believed administered the Website demanding that the materials be removed from the Website.

Subsequently, the Sheppard Letter was posted on the Website, by an anonymous individual with the username "d2," without Sheppard or Melaleuca's permission or consent. Melaleuca seeks to obtain the identity of the individual who posted the Sheppard Letter "so that it might seek redress for copyright infringement."


Contact Information from http://www.melaleuca.com/hr/display.cfm?m=1&p=12 [melaleuca.com] their website:

Melaleuca, The Wellness Company
3910 S. Yellowstone Hwy.
Idaho Falls, ID 83402

Phone (208) 522-0700
Fax (208) 535-2362

hr@melaleuca.com


The above page also has a web-based form for contacting them.

Their website is http://www.melaleuca.com/ [melaleuca.com]

I do NOT endorse, in ANY WAY, the daily repeated visiting, or scripted downloading of content through the above website in order to rack up high service charges and/or cause the shut-down of their website, NOR do I endorse the sending of large quantities of copyrighted complaint letters to their electronic or physical location. I cannot be held responsible for what people do with this publicly provided contact information.

Cheers.

Re:not as important as summary makes out (1)

ErikZ (55491) | more than 6 years ago | (#22192874)

It negates the point of scanning it in and posting it online. To show *exactly* what a bullying lawyer is doing to you.

Turn the tables? (3, Insightful)

ThreeGigs (239452) | more than 6 years ago | (#22192334)

So does this sword cut two ways?

Can I send 40 different versions of cease and desist letters to the US Copyright office and then sue any law firm that uses one that looks a bit too similar to one of mine?

Is an infringing cease and desist letter still valid?

Is "Copyright Troll" going to be a new buzzphrase?

Methinks this ruling will open up cans of worms the likes of which have never been seen, especially once the model is applied to the hundreds of legal documents that are basically boilerplate versions of each other (think leases, EULAs, credit agreements, and divorce documents for starters).

Re:Turn the tables? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22192354)

Next step, patenting legal arguments.

Re:Turn the tables? (0)

Anonymous Coward | more than 6 years ago | (#22192432)

> Next step, patenting legal arguments.

Funny how when you suggest that to lawyers, they understand that it'd be fatal for them. Yet they still maintain that business method and software patents are viable.

As for this ruling, it doesn't stop summarizing.

Re:Turn the tables? (1)

FailedTheTuringTest (937776) | more than 6 years ago | (#22192858)

I think that's a very interesting point. Does anyone have any ideas about how a lawyer would explain the difference between a legal argument and a business method?

Re:Turn the tables? (3, Funny)

smitty_one_each (243267) | more than 6 years ago | (#22192514)

Dude, when I get my patent on the Roman alphabet approved, you guys are so baked.

Re:Turn the tables? (1)

rishistar (662278) | more than 6 years ago | (#22192878)

Will the submission itself count as its own prior art?

Re:Turn the tables? (3, Funny)

budgenator (254554) | more than 6 years ago | (#22192582)

Now that would be interesting,
  1. get copies of the lawyers boilerplate
  2. insert your business/personal name address instead of Dozier Internet Law ect.
  3. Register with Copyright office
  4. every time they send you a C&D letter, you send one back

Re:Turn the tables? (4, Interesting)

TheVelvetFlamebait (986083) | more than 6 years ago | (#22192642)

It's only copyright if it's copied, not if there are coincidental similarities between two works. If you can prove that the cease and desist letters were copied off one of your 40, then I guess this lays the precedent. Anyway, even if I'm mistaken, the sword would cut the first way back at you, because if the field of cease and desist letters is as narrow as you think, chances are that many of your 40 cease and desist letters would be infringing on other previous letters.

Satire is still fair use: (3, Interesting)

olddoc (152678) | more than 6 years ago | (#22192722)

Don't post the actual letter. Post your version of it that makes fun of the letter.
Make it horrible: "We will send hit men to your home and torture your family to death"
If the law firm protests about your "satire" let them show the real letter to prove the satire is unfair.

Re:Turn the tables? (0)

Anonymous Coward | more than 6 years ago | (#22192750)

No. The crucial bit about copyrights, is the "copy" part. For copyrights to come into play, copying must have occurred.
If they come up with something similar without actually copying your letter, they are in the clear.

More to the point... (4, Funny)

Gordonjcp (186804) | more than 6 years ago | (#22192348)

... can you copyright a gallon of petrol through the law firm's letterbox?

Re:More to the point... (5, Funny)

Anonymous Coward | more than 6 years ago | (#22192452)

Mod parent +1 Inciteful.

Mod Parent Up! (0)

Anonymous Coward | more than 6 years ago | (#22192544)

He is obviously a learned individual who reads Shakespeare!

I guess he's with Shakpeare then? (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22192792)

The first thing we do is kill all the lawyers....

Re:I guess he's with Shakpeare then? (0)

Anonymous Coward | more than 6 years ago | (#22192932)

hear, hear.

Re:I guess he's with Shakpeare then? (1)

Sinkael (1089531) | more than 6 years ago | (#22193100)

http://www.spectacle.org/797/finkel.html [spectacle.org] Does not apply. . .

Re:I guess he's with Shakpeare then? (1)

Sinkael (1089531) | more than 6 years ago | (#22193124)

Since I can not edit, the "Does not apply" was meant for the parent.

This says a lot (3, Insightful)

HangingChad (677530) | more than 6 years ago | (#22192366)

The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter...

That figures. Idaho potato rule: If they're big enough, they're old enough. It could only be less surprising if the ruling had originated in Utah.

From the judgement... (5, Insightful)

Anonymous Coward | more than 6 years ago | (#22192392)

Everyone should familiarize themselves with the judgement [dozier-int...law-pc.com] . It's pretty amazing. Here are some choice bits... oh, assuming the judge didn't copyright it. Fair use should apply.

To qualify for copyright protection, a work must be original to the author. Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 345 (1991). Original means that the work was independently created by the author and possesses some minimal degree of creativity.

Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?

If the cease and desist letter were in haiku form, maybe. If it were sung to music, perhaps. But if its purpose is strictly as a utility and legal document, then where is the creative component?

The required level of creativity is extremely low; the work must "possess some creative spark, 'no matter how crude, humble or obvious' it might be." Id. (internal citations omitted). Copyright protection does not extend to facts or ideas. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991).

So? What is that creative spark?

17 U.S.C. Section 102(b). 43SB asserts that the Sheppard Letter is essentially a work detailing a process for the owner of the Website to follow in taking down remarks made about Melaleuca and its CEO.

What is the creative component of "take this off your website?" If merely offering such a "process" is the creative spark, then might I suggest it is in the public domain? And if not, surely it is a derivative of the works of others...

Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?

I can't wait for people to issue takedown letters on takedown letters on takedown letters. In fact, I would like to now and forever establish as prior art (and creative spark) my work entitled the recursive cease-and-desist letter!

"The recipient of this takedown notice is hereby ordered to take this very take-down notice from your Web site immediately."

See, it really is creative expression: An expression of irony and disgust.

Re:From the judgement... (2, Informative)

Anonymous Coward | more than 6 years ago | (#22192436)

"The recipient of this takedown notice is hereby ordered to take this very take-down notice from your Web site immediately."

"The recipient of this takedown notice is hereby ordered to take down this very take-down notice from your Web site immediately."

Fixed it. Now it's good to go.

Re:From the judgement... (4, Insightful)

S.O.B. (136083) | more than 6 years ago | (#22192462)

From the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.


How is a cease and desist letter related in any way to "Science and useful Arts"?

I think that Idaho judge has smoked too many potatoes.

Re:From the judgement... (1)

phorest (877315) | more than 6 years ago | (#22192484)

How is a cease and desist letter related in any way to "Science and useful Arts"?

Raising bad manners to an art form perhaps?...

Re:From the judgement... (1)

QuantumG (50515) | more than 6 years ago | (#22192522)

How is a cease and desist letter related in any way to "Science and useful Arts"?
How is Britney Spears?

How isn't cooking? (recipes are not copyrightable - for now).

Re:From the judgement... (3, Informative)

cpt kangarooski (3773) | more than 6 years ago | (#22193174)

How is a cease and desist letter related in any way to "Science and useful Arts"?

It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').

Re:From the judgement... (1)

QuantumG (50515) | more than 6 years ago | (#22192508)

Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?

If the cease and desist letter were in haiku form, maybe. If it were sung to music, perhaps. But if its purpose is strictly as a utility and legal document, then where is the creative component?
Sounds like the argument used to suggest that software has no creative aspect.. or blueprints.. or manuals.. or recipes.

All of which (expect the last one, for some strange reason) are protected by copyright.

Appeal (1)

maroberts (15852) | more than 6 years ago | (#22192706)

In the parent, it says that copyrights does not extend to Facts.

Since the allegations of Copyright infringement is an alleged fact, it can be claimed that copyright doesn't extend to the letter. All other information, including the address of the lawyers sending the letter, are facts, and non-copyright.

Re:From the judgement... (0)

Anonymous Coward | more than 6 years ago | (#22192906)

I can't wait for people to issue takedown letters on takedown letters on takedown letters. In fact, I would like to now and forever establish as prior art (and creative spark) my work entitled the recursive cease-and-desist letter!

You can't do that - I've already patented the idea!

A Great Idea: Singing C & D letters (1)

Prototerm (762512) | more than 6 years ago | (#22193058)

You send a guy dressed up like a shark to the victim's place of business (Knock-knock-knock. "Candygram"), and when he opens the door, deliver the C&D letter in song (Currently in the victim's choice of Country-Western, Rock and Roll, or Traditional Blues). Why, it's genius! A whole new business model in support of America's #1 service industry, Lawsuits. Think of the possibilities!

Now if I could just find that harmonica.

Re:From the judgement... (1)

cpt kangarooski (3773) | more than 6 years ago | (#22193162)

Here are some choice bits... oh, assuming the judge didn't copyright it.

Don't worry, he can't. US government works are uncopyrightable. Now, if only this were true for all other governmental agencies and the like.

Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?

Choice of wording, basically. It's not as though there is only one possible way to write a C&D. The threshold for creativity is incredibly low. You wouldn't believe how low it is.

Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?

The method, yes. Though novelty and nonobviousness would surely be factors. Copyright can easily deal with the expression of a method, however, just not the underlying method itself. That is, I can write a book about how to go jump in a lake, but all I can copyright is how I describe to do it. I don't get rights regarding actually doing it. This is the idea-expression dichotomy, a fundamental copyright concept, and the leading case is Baker v. Selden, which involved books on double-entry bookkeeping.

Anyway, this isn't a huge deal. There is a process involved in fighting these things, like a long if-then-else statement. All that's happened here is that the first 'then' that could help the defendant didn't work out. There's little doubt that one of the later ones will, but the case hasn't gotten to there yet.

Like I want to read all of that lawyer speak (3, Insightful)

samuel4242 (630369) | more than 6 years ago | (#22192396)

1) Scan it.
2) Blur 90% of the text.
3) Post it.
4) Build a headline from the nastiest sentence.
5) Decide whether you're going to fight or switch.
6) Move on.

Re:Like I want to read all of that lawyer speak (0)

Anonymous Coward | more than 6 years ago | (#22192472)

1) Scan it.
2) Blur 90% of the text.
3) Post it.


Really? Creating a derivative creative work without clearing the rights? That's like mixing the Beatles and Jay-Z and releasing it as some kind of original album or something.

Not to mention that the visual layout of the words on the page is an aesthetic choice made by the lawyer/artist that you wouldn't be hiding. Those exquisitely chosen margins, counterpointed by the the font sizes and paragraph breaks... those masterful expressions in the visual experience are what the creative work of a cease-and-desist letter is all about, man!

Re:Like I want to read all of that lawyer speak (1)

samuel4242 (630369) | more than 6 years ago | (#22192748)

Good points, but I think you have a much greater argument for "fair use" if you're not reproducing something exactly. Degrading the image sounds like a viable alternative.

Re:Like I want to read all of that lawyer speak (1)

TooTechy (191509) | more than 6 years ago | (#22193142)

Just display it via webcam - might lack a little resolution here and there.

You can copyright anything (1)

QuantumG (50515) | more than 6 years ago | (#22192416)

and if you can't copyright it you can certainly patent it or make it a trademark or claim it is a trade secret. There's even people claiming they can copyright mere listings of ingredients these days.

Re:You can copyright anything (1)

msslc3 (846991) | more than 6 years ago | (#22192876)

You can't claim the letter is a trade secret if you sent it to someone who has no duty not to disclose it to others. A trade secret must be a secret. Once you send the letter to a member of the public, it isn't secret any more.

Does this also mean (4, Interesting)

Travoltus (110240) | more than 6 years ago | (#22192418)

If I send a nasty email to someone and declare it copyrighted, they can't distribute it?

I say that because of a recent story about a guy who sent a girl a mean email and she published it on her blog and he received death threats in response...

Re:Does this also mean (1)

QuantumG (50515) | more than 6 years ago | (#22192466)

Umm, it's already copyrighted.. and yes, redistributing email without permission is copyright infringement.

FYI (4, Informative)

fred911 (83970) | more than 6 years ago | (#22192424)

Here's the C&D that was decisioned. They haven't managed to take this down. Then again, it's now part of the public record.

http://www.citizen.org/documents/directbuycd.pdf [citizen.org]

A Review (5, Funny)

Anonymous Coward | more than 6 years ago | (#22192594)

As an aficionado and longtime aesthetic critic of the cease-and-desist oeuvre, I have only a few moments to offer my review of this stirring and emotionally riveting form of creative mastery.

In the work's opening, we are introduced to the main characters, along with two settings (Virginia and Arizona) and a modern time period to help orient the reader. I was particular moved by the bold, overly-large font that portrayed (to your humble reviewer) the confidence and professionalism of our protagonist, especially when contrasted with the smaller left-justified (bravo!) intro that followed (no spoilers here!). The pure wit and joy I experienced by the artist's inclusion of a (purely tongue-in-cheek, I assume) disclaimer that this artistic work is only intended "for negotiation and settlement purposes" is difficult to communicate, but suffice it to say that by the third or fourth paragraph I was dabbing tears of pure joy from my cheeks with a handkerchief. Kudos!

The backstory that followed was a bit dry for my taste, but it was over quickly and followed by a riveting bulletpointed list of accusations that had me on the edge of my seat.

My friends, I do not want to spoil any of the chills and surprises that await, but do not pass up on your chance to experience this instant classic-- that is, before it's followed by the inevitable movie version.

Re:A Review (1)

Kreigaffe (765218) | more than 6 years ago | (#22193098)

More people need to read this post, someone mod it up more. :O

Re:A Review (1)

tehBoris (1120961) | more than 6 years ago | (#22193202)

Damn you Slashdot! Why didn't you give me modpoints this day :( **Shakes fist at cloud

Public Citizen Is a Fringe Operation (2, Informative)

samuel4242 (630369) | more than 6 years ago | (#22192426)

I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use". At some point, making copies is just making copies for losers who won't pay because they're too cheap. Sure, there are great cases with handicapped kids, but the folks I spoke with at Public Citizen seemed obsessed with finding some legal justification for how making 40,000 copies for your closest and most personal friends was some how "fair". It ain't gonna happen folks.

If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case. Not just the dreamers of the techno-utopia who believe that somehow everyone is going post all of their work for free and the farmers and carpenters will be so inspired that they'll just build us McMansions and fill the fridge with steaks.

Re:Public Citizen Is a Fringe Operation (1)

nomadic (141991) | more than 6 years ago | (#22193056)

I respect Public Citizen and I'm glad they're out there fighting the good fight, but I would never rely on their legal judgement alone. I've been in conversations with some of the lawyers there and they were obsessed with finding a way to "prove" that practically any P2P use is "fair use".

What are they, the EFF?

If you get into trouble and your bottom is on the line, make sure you get a lawyer with enough political sense to figure out how everyone thinks about the case.

Every lawyers main goal should be the client. The problem with some of these organizations is they're more concerned with creating precedent than getting the best result for their client.

Court did not rule on copyright issue (5, Informative)

nameer (706715) | more than 6 years ago | (#22192470)

From the ruling [dozier-int...law-pc.com] :

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, 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. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.
All the court said is that the prima facie evidence exists to let the subpoena stand for the simple reason that the slimy law firm registered the copyright of the letter. However, the court acknowledges that the defendant has "valid arguments" on their claim that the letter cannot be copyrighted. The court simply says that the analysis of those claims is beyond the scope of determining to quash the subpoena, and the prima facie case is sufficient to let the subpoena stand. As I see it, the defendant will now have to go to court and challenge the copyright directly instead of the validity of the subpoena. Of course, this is /., and I am not a lawyer.

Re:Court did not rule on copyright issue (1)

houghi (78078) | more than 6 years ago | (#22192592)

Of course, this is /., and I am not a lawyer.

Would it not be more obvious that if somebody actualy IS a lawer and wants you to take his advice, that he would state so specificaly? Sort of an opt-in instead of an opt-out.
Of course, this is /., and I am not a lawyer.

Re:Court did not rule on copyright issue (1)

Linker3000 (626634) | more than 6 years ago | (#22192682)

I think you meant to put: "..the law firm that some may consider slimy.."

There - just saved your ass from a libel suit!

Re:Court did not rule on copyright issue (1)

spiritraveller (641174) | more than 6 years ago | (#22192914)

All the court said is that the prima facie evidence exists to let the subpoena stand for the simple reason that the slimy law firm registered the copyright of the letter. However, the court acknowledges that the defendant has "valid arguments" on their claim that the letter cannot be copyrighted. The court simply says that the analysis of those claims is beyond the scope of determining to quash the subpoena, and the prima facie case is sufficient to let the subpoena stand. As I see it, the defendant will now have to go to court and challenge the copyright directly instead of the validity of the subpoena. Of course, this is /., and I am not a lawyer.
You pretty much took the words right out of my mouth... except for that last part.

Every independent media producers nightmare (0)

Anonymous Coward | more than 6 years ago | (#22192476)

Is that they are arrested, their works taken as 'evidence', and then copywrited and sold by the police. They already do this but to south korean companies who buy the footage for $500 a pop (homemade poor too, maybe you should put that camera away).

The point of copyright (3, Insightful)

Jugalator (259273) | more than 6 years ago | (#22192482)

... I think it was lost among some in law enforcement a long time ago.
Do some lawyers, and apparently some judges, even remember why copyrights exist anymore?

Copyrights are there to among other things let the copyright holder be credited for the work and benefit financially from the work through being an exclusive distributor of the work.

So a big WTF at this.

Re:The point of copyright (3, Insightful)

QuantumG (50515) | more than 6 years ago | (#22192488)

Copyright exists to promote the sciences and the useful arts. And to answer your question, yes, most everyone has forgotten this, if they ever knew.

Re:The point of copyright (3, Informative)

Homology (639438) | more than 6 years ago | (#22192826)

Copyright exists to promote the sciences and the useful arts. And to answer your question, yes, most everyone has forgotten this, if they ever knew.

Indeed, it also a time limited monopoly not intended to last to the end of days, even though some American corporations tries to make it that way. One of the reason it is a time limited monopoly is in recognition of the fact that science and art is not done in a vacuum but builds upon work and ideas of others.

Re:The point of copyright (1)

sqlrob (173498) | more than 6 years ago | (#22193010)

Let's for the moment assume extensions are done and over with.

I have a child, today, and a movie is released, today. She will likely be dead before the copyright expires. How is that limited?

Patent wars (1)

psychicsword (1036852) | more than 6 years ago | (#22192486)

The copyrighting of cease-and-desist letters is an easy way for law firms to bully small companies who have committed no wrong, but who have no real recourse to fight back against an attempt to shut them up via legal threat.
So pretty much a cease-and-desist letter is the new patent infringement.

Does this open up counter-claims? (0)

Anonymous Coward | more than 6 years ago | (#22192504)

I wonder if the new 'copyright' holding lawyers haven't just opened up a can of worms for themselves. I don't know copyright law all that well but I can imagine a couple scenarios:

1) If they use my name and not just a character loosely based on me (whether their work is fiction or non-fiction), then don't they owe me a royalty? Or can they claim that since I run a website, I'm a public figure and they can report whatever they want?

2) If they make claims that are eventually proven false (or damage my reputation before that), can I sue for liable?

In either case I hope a new version of the MLA handbook comes out so I know how to cite Cease and Desist letters. Just wondering...

Stupidest thing I've ever heard of. (0)

Anonymous Coward | more than 6 years ago | (#22192518)

That judge must have had five double drinks at a power lunch before he came back and made that pants load of a ruling.

This is fantastic News!!!! (0)

Anonymous Coward | more than 6 years ago | (#22192526)

Now we just have to figure out how to get them to join the writers strike!!!

Infinite monkeys Inc (2, Funny)

ThePilgrim (456341) | more than 6 years ago | (#22192576)

Sir,

I represent Infinite monkeys Inc. As you may be aware our company has bean attempting to recreate the complete Works of Shakespeare.Unfortunately we are still several melenia away from the conclusion of this project.

However our research has turned up all variations on Cease-and-Desist letters. And therefor we claim copyright on all such works.

Yours

Lord High Peanut Counter

More money for the legal parasites (1)

Alain Williams (2972) | more than 6 years ago | (#22192596)

The real purpose is to make more money for those social vampires that we call lawyers. Many small businesses and individuals will publish a cease & desist letter as a way of getting help and also shaming the company suing them into backing off -- all at little cost to them.

What this does is to mean that the guy being sued has either to give in or employ a lawyer at their usual rip off rates.

I have (unfortunately) had enough experience with these parasites, in my own case and helping other dads try to see their kids after divorce, and seen enough lawyers deliberately make things worse to prolong the case and so earn them more money. I sometimes regret not being religious because I would then be happy to know that lawyers would burn in hell.

Re:More money for the legal parasites (1)

ThePilgrim (456341) | more than 6 years ago | (#22192618)

I wonder if you could claim that the letter was a gift.

In the UK you are allowed to keep unsolicited gifts and do as you wish with them. As before you received the letter it is likely that you had no contact with the law firm this may be an avenue of attack.

Re:More money for the legal parasites (1)

Quila (201335) | more than 6 years ago | (#22192784)

In the US by law anything you receive unsolicited through the mail is your property, period.

Re:More money for the legal parasites (1)

egomaniac (105476) | more than 6 years ago | (#22193042)

Sure. But that doesn't give you the right to make copies of it, otherwise [Shady Publishing Company] could just have someone mail them a copy of [Popular Book] and then publish it with impunity.

Good news (1)

WK2 (1072560) | more than 6 years ago | (#22192628)

There is good news. Using copyrighted works for court-type purposes has been deemed fair use by the courts, in the same way that you can use copyrighted works for parody. This means you can share copyrighted works with your lawyer, for example. Maybe, since so many people use random strangers from the internet as lawyers, people can still post cease-and-desist (C&D) letters on their blogs.

Perhaps it is only infringement to use the copyrighted C&D letters for their intended purpose, without a license. I can't imagine a court would rule posting a C&D letter on the internet as infringement, because:
a) it does not lessen the value of the letter. Most of those reading it would not have any intent of actually using it
b) it is not for profit
c) it is for critique purposes
c) it is for legal advise (as mentioned above)

Of course, like so many things, whether or not posting a C&D letter is infringement or not is up to the mystical whims of the courts, and after the fact too.

Re:Good news (1)

WK2 (1072560) | more than 6 years ago | (#22192668)

I am following up to my own post, after reading TFA.

It appears that the question I brought up above is exactly what this ruling is about. Apparently, the courts have decided to get between victims and their (random stranger) lawyers. Sickening. Perhaps this will get overturned.

If you can afford a real lawyer, it is probably better to consult one of those. But if you have no money, consulting random strangers might be your only option. It is a sad state of affairs which has just gotten worse.

Re:Good news (1)

ErikZ (55491) | more than 6 years ago | (#22192812)

Most judges were lawyers once. This is to force citizens to consult (pay for) lawyers instead of posting it on the internet and getting other people's advice. Which really isn't the point of posting it on the Internet. People do that to expose bullying lawyers.

Simple solution (1)

Eternal Annoyance (815010) | more than 6 years ago | (#22192644)

Cite the letter.

Re:Simple solution (1)

ErikZ (55491) | more than 6 years ago | (#22192794)

What do you mean?

Fair Abuse (0)

Anonymous Coward | more than 6 years ago | (#22192650)

as long as the law remains this way.

There's the law, then there's the spirit of the law. The spirit of the law is useless. That's why we more often than not put the f in front of law.

The Pirate Bay legal page (1, Interesting)

init100 (915886) | more than 6 years ago | (#22192664)

So now The Pirate Bay will be sued for copyright infringement of cease and desist notices? After all, they publish all such letters (with mocking replies) on their web site legal page.

Re:The Pirate Bay legal page (0)

Anonymous Coward | more than 6 years ago | (#22192882)

Sure. But they are a soverign nation, thus it doesn't matter what the fuck America says. Until we invade them.

Re:The Pirate Bay legal page (2, Insightful)

mmcuh (1088773) | more than 6 years ago | (#22192954)

Yes, of course. Assuming that Swedish courts care one bit about US precedents.

I lost a case because I was short bus money (0)

Anonymous Coward | more than 6 years ago | (#22192730)

Hopefully this will cause more people to lose cases because they couldn't afford to make it to the courthouse.

poverty is not a crime.

So publish every CDL (1)

gatkinso (15975) | more than 6 years ago | (#22192754)

Everyone publish every CDL you recieve. Would this stop the courts from enforcing copyright claims on CDL (an huge influx of such claims)? I am definately not a lawyer. Thank god.

Why not... (2, Interesting)

Bones3D_mac (324952) | more than 6 years ago | (#22192788)

... copyright your name and contact info? Anyone you don't want contacting you would then be subject to legal action if they don't destroy their unauthorized copies. Their ability to continue further contact could be enough to prove they have not complied.

Doesn't this sound familiar? (1)

reboot246 (623534) | more than 6 years ago | (#22192806)

The victorious lawyer must be a regular slashdot reader.

Observe (0)

Anonymous Coward | more than 6 years ago | (#22192814)

Cease and Desits ©

Lawyer should remember (1)

flyneye (84093) | more than 6 years ago | (#22192822)

Stupid shyster should remember that copyright lasts several years after death,but,if he should pass on from an accident like "sudden death",who will be left to sue the righteously pissed respondent.
IANAL and glad of it.

Once part of the public record (1)

dgun (1056422) | more than 6 years ago | (#22192868)

I would write the lawyers and tell them if they want to protect their intellectual property, then they should make sure that the cease-and-desist letter never becomes part of the court record. Because if it ever does, I would totally put it up on my blogz, lolz.

Dozier, eh (1)

Plutonite (999141) | more than 6 years ago | (#22192890)

John W. Dozier, Jr., Esq., President of Dozier Internet Law, PC, was not surprised by the decision.

Of course he wasn't: it was in Idaho that this happened. The state that has more cows than people. I am not about to gasp anytime soon.

Meanwhile, the judge obviously has no idea whatsoever what copyright means or was devised for. I know you're in Idaho, but have an idea out there, moron. The intellectual property of the lawyer (assuming he has any) is not protected by this law. It is not in any way relevant to this law. And reading that article, I was seriously starting to get scared when the journalists in that incognito paper began using terms like "'free speech' groups" in actual quotes, like there was some sort of profound controversy over the matter at hand, and normal people like ourselves are suddenly part of a fringe mentality that embodies itself in organised "groups" of extremists. George f*cking Orwell, baby. You get an unsolicited letter in the mail threatening you, and you can't let other people know?

Very funny.

Wouldn't you still have to go through the process? (1)

toddvj (1074977) | more than 6 years ago | (#22192950)

Wouldn't you have to actually get the letter copyrighted? Just saying that you can copyright the letter doesn't make it automatically copyrighted, does it?

Re:Wouldn't you still have to go through the proce (0)

Anonymous Coward | more than 6 years ago | (#22193000)

Just writing the letter makes it automatically copyrighted.

In before... (1)

uxbn_kuribo (1146975) | more than 6 years ago | (#22193054)

this gets overturned in a higher court.

This is not as important as the summary makes out. (2, Insightful)

spiritraveller (641174) | more than 6 years ago | (#22193170)

This is not a decision approving the tactics of law firms that try to silence people that they sue (though it may have that temporary effect).

The only issue here was whether to quash the subpoena to identify the person who posted the C&D letter. All you have to show to support such a subpoena is a prima facie case. That means that you only have to show that you have met the initial elements of your claim. Meaning that they posted something and it was your copyrighted work.

The question of whether this is Fair Use (and I can't imagine that it wouldn't be) has not been decided. That's not part of the prima facie case of copyright infringement, rather, it is an affirmative defense that the defendant must raise and argue.

Really, the judge should have taken note of the First Amendment implications of all this and quashed the subpoena anyway.... I mean, really.

The Defendant will now have to litigate the case, but if he wins, the "precedent" will be just as persuasive, if not more.
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