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Copyright Law and Cease-and-Desist Letters:

Five readers e-mailed me about the court decision saying that cease-and-desist letters are protected by copyright. Does this mean that sites that get such letters -- usually saying "your post violates my client's [libel / privacy / copyright / etc.] rights, so take it down immediately or else" -- are violating copyright law when they post the letters (usually in the context of criticizing the letters)?

Probably not, though it's not obvious. The magistrate judge's report, which was adopted by the district court, is here, and a careful read makes things clearer. But first, let's go over two basic copyright law principles (which I necessarily oversimplify):

1. Copyright law presumptively protects pretty much any written (or otherwise recorded) work, whether or not the work is commercially valuable, highly creative, or decorated with a copyright notice. That includes this post, nearly any letter, and nearly any e-mail, except those that are very short or that almost entirely consist of copies of someone else's work.

2. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a "fair use" of the work.

The court decision in this case simply reaffirmed item 1, and thus isn't terribly noteworthy. And it only had occasion to consider item 1 because it did not decide that posting a cease-and-desist letter is copyright infringement (which would have required considering the fair use defense). Rather, the court was only asked to decide whether the plantiff could use a subpoena (under 17 U.S.C. § 512(h)) to discover the identity of the poster. The court concluded that for this, the potential plaintiff only had to show that copyright law presumptively protected his work (which it does); the fair use inquiry would then take place when the merits of the case are litigated, at trial or on a pretrial motion.

One can argue that this was mistaken, that anonymous speakers should have more protection against litigation that seems likely to be groundless, and that a subpoena shouldn't issue if there's reason to think that an affirmative defense (such as fair use) should prevail; I take no position on this question. But the important thing is that the court held that the "copyright law protects a lawyer demand letter posted online by the recipient" (to quote the press release of the lawyer for the potential plaintiff) only in the sense that copyright law does presumptively cover such letters; as an interpretation of existing law, that's quite uncontroversial. The court did not hold that the letter was protected by copyright on the sense that a lawsuit over the posting of such a letter is likely to succeed.

What then about question 2, which wasn't decided in this case but might be litigated in the future? This is unfortunately a tough question, because "fair use" requires the application of a notoriously mushy balancing test. Here's a quick run-through of the four fair use factors:

1a. The purpose of the use -- criticism of the original, which cuts in favor of fair use; the more detailed the criticism, the better for the user.

1b. The purpose of the use -- if the site makes some money (e.g., through advertising), then this cuts in some measure against fair use. But it doesn't cut that much against the fair use when the use is critical, since criticism even in commercially distributed works (such as newspapers or books) is generally a favored use.

2a. The nature of the copied work -- primarily not creative (the way a work of fiction might be creative), which cuts in favor of fair use.

2b. The nature of the copied work -- unpublished by the author, which cuts against fair use.

3. The amount of the work taken -- the entire work, which may cut against fair use, but the court may conclude that the critical nature of the posting requires copying the entire work (so that the reader can evaluate the criticism based on all the facts), in which case this factor may be neutral.

4. The effect on the market for the work -- cuts in favor of fair use, since there is generally no market as such for cease-and-desist letters, and it's unlikely that there'd be a licensing market for the letters (since few people would license the use of the letter to a critic). Any harm to the copyright owner stems from the critical nature of the posting, and not from the poster's competing with the author in the nastygram market.

If it weren't for the unpublished nature of the letter, the Supreme Court's Campbell v. Acuff-Rose decision, on which I rely in my quick analysis above, would make this an almost open-and-shut fair use case. The unpublished nature of the work undermines that in some measure (see, e.g., Harper & Row v. Nation Enterprises); but I still think the copier's fair use case is quite strong.

By the way, I couldn't find the allegedly infringing post containing the cease-and-desist letter. If you can find it and send it to me, I'd love to see it, and post it if I think it merits criticism.

William Spieler (mail) (www):
It's hard to be critical of an unpublished work to a wider audience without publishing the work, I'd imagine.
1.28.2008 1:33pm
Bill Poser (mail) (www):
Since the reason that preliminary action like this subpoena cannot be prevented is because fair use is an affirmative defense, I wonder if the public interest could not be better protected and litigation reduced (thereby satisfying everybody! :)) by modifying the copyright act so that, in order to make a prima facie case for infringement, the copyright holder must be prepared to show that it stands to lose something that we wish to protect, e.g. potential sales. In other words, by moving some aspects of fair use from affirmative defense to elements of the cause of action, it becomes possible to cut off litigation at an earlier stage.
1.28.2008 1:34pm
Scote (mail):
I think you'll find that the real import of this case is that the law firm in question managed to turn a failed request for a subpoena into a winning one.

The firm tried to subpoena the identity of an internet poster and failed because their case was in adequate, however when an anonymous poster uploaded their huff and puff C&D (with--if it is like other Dozier doozies--it's direct claim that the letter is copyright &confidential and you may not post the threatening letter in full or in part) to the web, then Dozier managed to subpoena the ID of that poster based on "copyright infringement"--inspire of the fact the letter was mostly boilerplate, a threat and inherently newsworthy.

The import of the case is not so much that letters can be copyright but that the letters that contain legal threats can be used as weapons themselves against the recipients who try and show the nature of the letter. It is as if a thug comes in to your store threatens to burn down your store if you don't pay protection money, but then declares his threat to be copyright and that he'll sue you for infringement if you relay what he said to anyone.

Dozier is an arrogant bully, from the letters I've seen posted in the past. I suspect that by Dozier's over-broad interpretation of copyright that even photocopying the threat for use as evidence in a court proceeding is illegal.

IMO
1.28.2008 1:58pm
Scote (mail):
Public Citizen would seem to have the document in question.

And note the company Dozier represents would seem to have a similar reputation as Dozier. IMO.

http://www.citizen.org/documents/directbuycd.pdf
1.28.2008 2:05pm
Adam J:
I never understood why unpublished works get greater protection- it seems to contradict the goal of copyright.
1.28.2008 2:11pm
Houston Lawyer:
So I send a demand letter which shows that I'm an ass and then I'm able to sue because someone else publishes the letter to prove to the rest of the world that I'm an ass. At what point does the ass have to start paying everyone else's legal fees and expenses?
1.28.2008 2:28pm
UVALawGoon:
I wonder if merger doctrine has an impact here - I mean, there are only so many ways to say "You are violating my copyright" and to establish copyright in the language of a cease and desist letter would necessarily place all other cease and desist letters at risk.

It's not like this is some kind of unique expression, but instead seems more like standard form legal language that is not protected by copyright. See Morrissey v. Procter &Gamble, 379 F.2d 675.
1.28.2008 2:32pm
Bored Lawyer:
Just to f/u what UVALawGoon said, I myself have written hundreds of C&D letters in my practice, and they are all more or less the same.

In fact, my boss published a chapter in Matthew Bender's Intellectual Property Counseling which contains a number of sample forms, including a sample C&D to infringers. (I myself drafted a variation on that published in an update to the chapter.)

I am sure there are other hornbooks which have sample C&Ds, and I am sure that they are not that different from one another.

In light of that, I wonder whether a C&D is really "original" within the meaning of copyright law. Granted, the standard is very low (see the Feist case), and original does not mean novel (if you created something independently and w/o copying, you have something original, although it might not be novel.) Still, I think most C&D's are pretty run of the mill and have been copied within law firms for decades.
1.28.2008 2:45pm
Dilan Esper (mail) (www):
I think Professor Volokh's aside about the subpoena gets to what is really the fundamental issue here. I know that the Supreme Court is VERY skeptical of First Amendment defenses in copyright cases. But this is a strong case for one. Fair use has us balancing all sorts of factors to determine whether the letter can be published. And, as Professor Volokh notes, because fair use is statutory and a balancing test, it offers little protection against a discovery subpoena.

What we really need is a per se rule. It should not be illegal to post a demand letter on the internet to criticize it, and the reason is because you have a First Amendment right to criticize a demand letter and drawing a categorical rule won't impair the exploitation of any copyrighted works made for profit. And if you have this per se rule, then we can protect the anonymity of the speaker as well.
1.28.2008 2:46pm
Eugene Volokh (www):
UVaLawGoon, Bored Lawyer: I'm pretty sure that the letter is indeed sufficiently original to get presumptive copyright protection (setting aside the fair use defense); and as I read the magistrate's decision, that's more or less what he concludes, too.
1.28.2008 2:47pm
Scote (mail):
@Eugene Volokh

And it should also be presumptive fair use to post a legal threat to the internet for public scrutiny.

Posting it to the internet shouldn't be considered copyright infringement anymore than posting the original in your store front window should be. The internet is today's version of posting the item in a shop window, the "copying" aspect is secondary because the poster's fair use rights to post the letter do not diminish the value of the copyright except to the extent the author's claims are shown to be untenable.
1.28.2008 3:05pm
Elliot123 (mail):
There seems to be a simple solution: post the letter using an anonymizer software package.
1.28.2008 3:21pm
seadrive:
If I scan a litter that I received, I'm displaying an object was given to me, not making use of the content.

If I show my car to a friend, I'm not violating the manufacturer's patents.
1.28.2008 3:25pm
Scote (mail):
@Eliot124
I don't know if I would call that a "solution."

Direct Buy and Dozier are trying to stifle legitimate criticism through threats and intimidation. We shouldn't have to go to such lengths to avoid big pockets bullies who want to file SLAPP suits.

(This post and all of my posts here and anywhere on the internet represent my opinion. That is to say I find Dozier's actions such that I can imagine him suing just about anyone for anything. To that extent, he's won. I'm stifling my speech, to a certain extent, because of that. His actions definitely have first amendment implications. He is suppressing free speech through his actions. IMO, natch.)
1.28.2008 3:29pm
Scote (mail):
@seadrive:

It seems to me that just as contracts for illegal activity are not valid, copyright should not cover legal documents, or documents prepared by lawyers. Of course, it occurs to me that Dozier is not the copyright owner of the letter in question. The letter is clearly "work for hire" (absent a written agreement to the contrary--which he may have), thus the work is presumptively that of the client. While that could still result in the same outcome were the case presented to the same judge, I would be amused for Dozier to have to license the document from his client if he were to use it in future. (Or, it is possible a previous client paid for it and owns the copyright and that this current letter is a derivitave work.)

To what extent is a lawyer's work product copyright? Especially when lawyers reuse their own work prepared for other clients all the time? I think Dozier may have opened himself up to suit if he does not have explicit "not work for hire" clauses in his retainer agreements already.
1.28.2008 3:36pm
Tony Tutins (mail):
To cover this situation, we need an exemption for "legally operative words," otherwise law firms won't be able to copy court filings.
1.28.2008 3:38pm
Gramarye:
I'll admit that IP is far from my specialty and I'm not exactly conversant in the jargon of the discipline, but it seems to me that honoring (i.e., giving the benefit of legal or equitable enforcement of) the no-republication clause at the end of that letter would be practically the equivalent of a private right to classify documents. What, exactly, would be the limit of the use of such silencing clauses, if they were enforceable at all? (Another balancing test?)

It seems to me that the Harper &Row holding above should be cabined to works that can reasonably be believed to be ultimately heading for publication. The work in question there was the collection of unwritten memoirs of Gerald Ford. It was going to be published eventually. It makes sense to have more powerful copyright protections for an unreleased work that's going to be released eventually because if you let hundreds of people start talking about a work before it's published, you could practically "fair use" it into an early release.

No such concerns seem present here. Try to plug this work into the Harper &Row case and see if the reasoning makes any sense. Read the syllabus. The Nation could not claim fair use protection because it "effectively arrogated to itself the right of first publication, an important marketable subsidiary right."

Not all unpublished works are created equal. Fierce protections for unpublished manuscripts of the next Harry Potter book, or a postproduction/pre-release movie, or an upcoming law review article make sense. Protection of communications like this, absent a prenegotiated confidentiality agreement, do not.
1.28.2008 3:41pm
Bored Lawyer:
Prof Volokh:

What the Court said was that because the letter was registered, it enjoyed a presumption of validity. That is of course true, and may be enought to uphold the subpoena, but I am still dubious that on full examination the letter will be considered sufficiently original.

Consider also that most C&D's are adapted from prior C&Ds, either real ones or from a book. They are therefore derivative works, and their protection extends ONLY to the additional creativity that the new derivative work contains over the old work.

I would be curious to see whether the registration lists the "C&D Letter" as an original or derivatice work, and if the latter what was it based on and what original expression was supposedly added to it.

(Others should note that the Court opinion said that the only got to subpoena the identity of the poster of the C&D (nichnamed "d2"), NOT the original poster of the comments, nicknamed "Tom Paine." So it was not a total victory by a long shot.)
1.28.2008 3:41pm
Aultimer:
Why not (counter)sue Dozier and DirectBuy for infringing the infomercial* guys' content by including text from their website?
1.28.2008 3:55pm
Scote (mail):

To cover this situation, we need an exemption for "legally operative words," otherwise law firms won't be able to copy court filings.

Or provide discovery. I assume that Dozier aks for discovery he demands copies, regardless of whether the unpublished discoverable items may be copyright by parties other than those holding the documents. Could one hold back discoverable items merely because they are presumptively copyright, especially since discovery is not always by court order.
1.28.2008 4:03pm
Scote (mail):
Errata: I assume that when Dozier asks for discovery he
1.28.2008 4:05pm
David M. Nieporent (www):
Dozier has nothing whatsoever to do with this, except publicizing it and pretending it meant something it didn't. What happened was that several months ago, Dozier sent out a C+D; after that letter was publicized by its recipient, Dozier threatened them with copyright infringement, and got roundly ridiculed in the blawgosphere. And Public Citizen basically dared Dozier to sue based on that theory. Dozier backed down.

Now, this case came about, unrelated to Dozier, and Dozier has seized upon it as 'proof' that Dozier's position was correct.

But, as Bored Lawyer wrote above, and as I wrote over at Overlawyered, this case stands only for the proposition that in a DMCA subpoena situation, the court won't address the merits of a copyright claim.
1.28.2008 4:23pm
Bored Lawyer:
One other thought.

The Court here says that to obtain a subpoena, one needs to make out a "prima facie case of copyright infringement," which it defines as a showing of ownership of a valid copyright and copying of protectible expression. There is no requirement to negate affirmative defenses.

Contrast this with a motion for a preliminary injunction or for a TRO. There, the movant, as part of its requirement to establish "likelihood of success on the merits," usually has to negate any applicable affirmative defenses -- including fair use in copyright.

This difference looms large in copyright cases. There are many, many cases where the copying is prima facie infringement but is likely protected by fair use. Why should an ex parte subpoena issue in such a case?
1.28.2008 4:27pm
Bruce:
I think the letter was "published." "Publication" is "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." I think there was a transfer of ownership of the copy, and by sending it to someone not associated with the author in any way, that was "to the public," even though it was one organization.
1.28.2008 4:55pm
Bill Poser (mail) (www):


I think the letter was "published." "Publication" is "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending."

I didn't think that this would work, but the legislative reports on the Copyright Act of 1976 define "to the public" as:

distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents.

in which case, since the recipient of a C&D has no obligation not to disclose the contents, sending a C&D letter does indeed constitute publication.
1.28.2008 5:01pm
Elliot123 (mail):
"Direct Buy and Dozier are trying to stifle legitimate criticism through threats and intimidation. We shouldn't have to go to such lengths to avoid big pockets bullies who want to file SLAPP suits."

I agree we shouldn't have to do that, however, one uses the tools that are available.
1.28.2008 5:05pm
UW2L:
Joe Gratz of Keker &Van Nest has a good post about this here. He takes a position like EV's, but points out an important fact: The C&D letter was registered with the Copyright Office. Very clever move: simple, quick, effective. You gotta register if you want to sue for infringement, even though you don't gotta register to get the copyright in the first place (anymore). Understandably, the court here was not about to question the validity of a Copyright Office registration, though as Joe points out, the Copyright Office isn't going to look as closely at a registration submission as the PTO scrutinizes a patent application. Registration makes a pretty good shield, at least at this early stage.

I agree with commenters above that there should be a change in the Copyright Act to make fair use doctrine more potent for defendants earlier on, so they don't have to incur litigation costs. The shield of registration plus the specter of a Pyrrhic victory, where defendants' use is vindicated as fair only after an expensive battle, is just one more way to bully people (who don't have the resources of a music label behind them as I imagine 2 Live Crew did) into stopping conduct which is probably perfectly legit but which you don't like.

And the plaintiff in the C&D case didn't even get its guy, ultimately. It got some other poster's identity, but not the one it was after. So what was the point of all this? Nobody really seems to have won, here - except the original anonymous poster of the C&D letter, whose identity is still safe - for the moment.
1.28.2008 5:05pm
Bruce:

I didn't think that this would work, but the legislative reports on the Copyright Act of 1976 define "to the public" as:

distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents.


Bill, that's what I had in mind, but I didn't realize it came from the legislative history, thanks.
1.28.2008 5:08pm
Fub:
Dilan Esper wrote at 1.28.2008 2:46pm:
What we really need is a per se rule. It should not be illegal to post a demand letter on the internet to criticize it, and the reason is because you have a First Amendment right to criticize a demand letter and drawing a categorical rule won't impair the exploitation of any copyrighted works made for profit. And if you have this per se rule, then we can protect the anonymity of the speaker as well.
Dozier's press release linked above freely admits that his purpose was to stifle or prevent public discussion about an issue of public importance:
John W. Dozier, Jr., Esq., President of Dozier Internet Law, PC, was not surprised by the decision. "In today's world, anticipating how the Courts will view 'new age' arguments is not easy. Dozier Internet Law has been using copyright protected cease and desist letters for years with great success in protecting our business clients and preventing an escalation of a situation. The publication of cease and desist letters is an easy way for scofflaws to generate online 'mobosphere' support for illegal activity and, until today, many businesses have been hesitant to take action to address some of the lawlessness online because of possible retaliation and attacks."
I'll raise you one. "What we need" is also federal legislation like California's anti-SLAPP statute. File a suit that a court finds was intended to stifle free speech, and you pay defendant's attorney fees and court costs.
1.28.2008 5:16pm
Gene Hoffman (mail) (www):
I believe that posters above are correct. Publishing to 1 person is publication as that one person is under no obligation to not publicly display the work. The person above who points out that he could have taped it to his store window is quite correct. As such, we're at exactly Acuff Rose and therefor Eugene's analysis is slightly off.

As such, this is a slam dunk on the fair use side, but still the subpoena issues which has more to do with the procedural requirements of the DMCA than it does copyright law per se.

-Gene
1.28.2008 5:28pm
KeithK (mail):
More broadly, is there any conceivable reason why a C&D letter should be entitled to copyright? There is no creativity involved and lawyers certainly do not need any government granted monopoly as incentive to "create" such things. Given that I'd argue that this type of letter quite simply is not entitled to copyright protection. (Granting it violates the spirit of the copyright clause in the Constitution though it probably does not actually violate the letter.)

The only argument that makes any sense is the difficulty of carving out various exceptions to what is covered by copyright. But I would think one could easily craft a n appropriate exception for this class of document.
1.28.2008 5:33pm
Scote (mail):
We may see the over-broad claims of this C&D letter which claims that no part of the letter may be reproduced. I'll quote the relevant part for comment and criticism as follows:

"Please be aware that this letter is copyrighted by our law firm [really, one would think this work for hire would by copyright by the client who paid for it...], and you are not authorized to republish this in any manner. [One of the nice things about fair use is that "authorization" isn't needed as it is an exception to copyright.] use of this letter in a posting, in full or in part, will subject you to further legal causes of action. [Well, I suppose that part is true. They didn't say "legitimate" causes of action.]"

Lucky for me they didn't say "will subject anyone who posts it to further legal causes of action," so I'll assume that doesn't apply to me! Pretty ballsy to claim that not even a part of the letter may be legitimately posted when the letter itself copies text from the website Dozier claims to contain actionable statements. Funny how copyright doesn't apply to Dozier, only other people.
1.28.2008 6:01pm
CrazyTrain (mail):
Plaintiff's press release was absurdly misleading, and they should be ashamed of issuing such a misleading release. For example, they say, "The publisher of the letter raised First Amendment and "fair use" arguments without success." That may technically be correct, that the publisher "raised" fair use, but it was NOT rejected by the Court. The Court simply found that a prima facie case of copyright infringement had been made out, and did not at all address the fair use issue and whether it applied.

Very, very misleading and this Dozier guy should be ashamed.
1.28.2008 6:07pm
David Schwartz (mail):
KeithK: I agree with you completely. The legal doctrine that is supposed to do this is "merger".

Once you send a C&D letter to a person as a legal threat, the expression and the idea merge. Only the entire text of the letter will suffice to convey the idea of precisely what threat was made. The threat is a fact, and the copyright in the C&D letter attempts to suppress communication of that fact.

There is simply no other way to convey the precise idea than the words in the letter. Insofar as the words are used to convey the threat made, the idea and its expression merge.

I believe this same argument can and should be made with respect to copyrighted laws, as the dissent in Veeck v. SBBCI argues.
1.28.2008 6:10pm
K Parker (mail):
I'd at least like to raise the suggesting that any piece of writing whose meaning or intent is performative should get no copyright protection whatsoever. Otherwise, are we going to see nonsense like the county (or the state) copyrighting copyrighting the text of your marriage license, divorce decree, death certificate, and so forth?
1.28.2008 6:21pm
Fub:
Scote wrote at 1.28.2008 6:01pm:
Funny how copyright doesn't apply to Dozier, only other people.
Dozier's tactic reminds me of the usenet loons of yore. The classical scenario was that a loon would post a troll with a copyright notice at the bottom. If anyone responded and quoted any part of the original article the loon would respond with threats of lawsuits for copyright infringement. Hilarity then ensued, at least the first time one saw such an event. But once was enough, and killfiles were updated accordingly.
1.28.2008 6:26pm
David Schwartz (mail):
Just to clarify, byt the "dissent in Veeck v. SBBCI", I mean the dissent in the original panel ruling. The case was reheard en banc and the majority adopted a slightly different reasoning than the original dissent. The en banc majority ruling essentially held that the law belongs to the people to do with as they wish. This holding is less useful in the case of a C&D letter.
1.28.2008 6:32pm
CrazyTrain (mail):
No. The merger doctrine is likely not applicable. There are tons of ways of expressing the idea of alleging infringement of a specific copyrighted work. You guys should really read up on merger cases.
1.28.2008 6:39pm
KeithK (mail):
I was thinking in terms of legislative action for this situation rather than judicial. It's all well and good that a court might rule that posting the letter was fair use. I'd rather the law explicitly not provide copyright protection to a C&D letter or similar legal messages for which there is no reason to provide it.
1.28.2008 6:50pm
David M. Nieporent (www):
This difference looms large in copyright cases. There are many, many cases where the copying is prima facie infringement but is likely protected by fair use. Why should an ex parte subpoena issue in such a case?
Well, one reason I can think of is because the party who was subpoenaed isn't really the right party to be raising the fair use defense, since that party isn't the one that actually engaged in the copying.

It would hardly be fair to the putative copyright holder to have to litigate the fair use issue twice, once to obtain a subpoena to determine who to sue, and then once when he actually sues.
1.28.2008 7:03pm
David Schwartz (mail):
No. The merger doctrine is likely not applicable. There are tons of ways of expressing the idea of alleging infringement of a specific copyrighted work. You guys should really read up on merger cases.


This miscomprehends how merger is supposed to work. Consider a Haiku that is also the password to a computer system.

When published in book of Haikus, merger does not apply. Any Haiku will do.

When used to access the computer, merger applies and copyright does not. Only this Haiku will provide access. That any Haiku could have been the password doesn't change the fact that only one actually *IS*. And when used as the password, the Haiku's idea and expression merge.

When used to show the specific threat made, merger applies to the C&D letter. Only the text of that C&D letter will do. When the author and copyright holder of a C&D letter chooses to enact it into fact by using it to threaten someone else, he merges the expression into an idea. The precise contours of his threat are a fact only expressible in the words he choose to use to make that threat.

This is precisely analogous to the merger holding in Veeck. When BCCI chose to ask municipalities to enacts its model code, it asked them to merge their expression into a set of facts. Those facts in Veeks were the building codes people were subjected to in those various municipalities. In this case, the facts are the precise legal contours of the threat the letter makes.
1.28.2008 7:05pm
Scrivener:
I think the allegedly infringing post is available in one of the court filings here:

http://www.citmedialaw.org/threats/melaleuca-v-43sbcom-llc
1.28.2008 7:43pm
Eugene Volokh (www):
Gene Hoffman et al.: It's pretty clear that a letter sent to one person is not treated as "published" for copyright law purposes. To begin with, letters to one person were historically the paradigm examples of unpublished works, and while most of those letters were social rather than business, that doesn't affect whether they were published.

Moreover, 17 USC 101 defines "publication" as "distribution of copies ... of a work to the public," which suggests that some distribution of copies to others is not to the public. Nimmer on Copyright likewise echoes this.
1.28.2008 7:50pm
Scote (mail):

David M. Nieporent (www):
Dozier has nothing whatsoever to do with this, except publicizing it and pretending it meant something it didn't.

Good point. I had conflated the two cases based on the self-serving and misleading press release by Dozier and the earlier TechDirt posting.
1.28.2008 8:01pm
Scote (mail):

David M. Nieporent (www):
Dozier has nothing whatsoever to do with this, except publicizing it and pretending it meant something it didn't.

That was back when such letters were originals, either typed or manuscripts. Today, letters are almost invariably distributed copies. We literally publishcopies of the original using a printer or a copy to transmit by facsimile or e-mail. The paradigm has shifted.


publish |ˈpəbli sh |
verb [ trans. ]
ORIGIN Middle English (in the sense [make generally known] ): from the stem of Old French puplier, from Latin publicare 'make public,' from publicus (see public ).


Publish means to make public. Sending an unsolicited copy of a letter, facsimile or email to a member of the public, who is free to reveal the contents of that letter, should definitely constitute "publication."
1.28.2008 8:09pm
Tony Tutins (mail):
Does "publication" mean the same thing for both defamation and copyright law?
1.28.2008 8:27pm
Scote (mail):
Holy Erata!! I printed the whole wrong quote in my post above. I meant to paste in and refer to EV's post and still had the old one in my clipboard. Now my post will make a little more sense, even if it remains clear I'm a little addled today:

Gene Hoffman et al.: It's pretty clear that a letter sent to one person is not treated as "published" for copyright law purposes. To begin with, letters to one person were historically the paradigm examples of unpublished works, and while most of those letters were social rather than business, that doesn't affect whether they were published.

That was back when such letters were originals, either typed or manuscripts. Today, letters are almost invariably distributed copies. We literally publishcopies of the original using a printer or a copy to transmit by facsimile or e-mail. The paradigm has shifted.

publish |ˈpəbli sh |
verb [ trans. ]
ORIGIN Middle English (in the sense [make generally known] ): from the stem of Old French puplier, from Latin publicare 'make public,' from publicus (see public ).

Publish means to make public. Sending an unsolicited copy of a letter, facsimile or email to a member of the public, who is free to reveal the contents of that letter, should definitely constitute "publication."

--apologies for the error.
1.28.2008 9:12pm
Hadley V. Baxendale:
A word of warning: to those of you who have been using portions of my copyrighted patent specifications without contacting me for license terms, rest assured I will be in touch with you. Also be warned if you have been using chunks of my affidavits or my expert witness reports. And if you have copied my time-tested software license provisions, I will be on you like white on rice. All your base are belong to me.
1.28.2008 10:48pm
D K Warren (mail):
For those interested, Eric Goldman's "Technology &Marketing Law Blog" posted an extensive analysis of this incident back on December 18, 2007. It includes the original takedown letter and the copyright registration for the takedown letter.

The post is available at this link.
1.29.2008 4:17am
Bored Lawyer:
David M. Nieporent wrote:


It would hardly be fair to the putative copyright holder to have to litigate the fair use issue twice, once to obtain a subpoena to determine who to sue, and then once when he actually sues


Why would it be unfair? Generally, one does not get discovery before you file a lawsuit -- even discovery to find out whom you wish to sue. So that part of the DMCA is sui generis. That is why the Courts require at least a showing of a prima facie case of copyright infringement.

One comparison I raised is to seeking preliminary relief. Another comparison is seeking expedited discovery at the begninning of a case. Courts are split as to what the standard is on that. Remember also that here the application is ex parte -- which generally requires a higher standard of scrutiny.

Furthermore, in DMCA cases there can often be a countervailing First Amendment right to anonymity. This is not a typical tort (e.g. a car accident) where the putative defendant has no legitimate interest in anonymity.

Given the First Amendment right to anonymity, and the broad reach of the Fair Use defense, I don't think it is that clear that it is "unfair" to make the applicant for a subpoena to make some kind of showing that he will prevail over a fair use defense.
1.29.2008 9:35am
d2 (mail) (www):
Hi, I'm a party in one of the two cases being discussed here.

Perhaps the most important clarification I offer here is that Dozier has written up a summary that takes careful reading to see that Melaleuca v 43sb isn't his case. In fact, before the story made slashdot (1/26/08), I had never heard of Dozier. While I find his perspective a bit chilling (i.e., that free speech is a business nuisance), I also feel his writing is either grandstanding or poor choice of words. Neither are traits I'd recommend in an attorney.

Thanks to David Schwartz for the analysis of Merger, and for everyone's attention to this case.

Melaleuca was either using DMCA to 'fish' for identity info on 'Tom Paine' (who posted a rumor on 43sb) or was trying to prevent negative attention due to their hamfisted lawyering. Either fits Melaleuca CEO Frank VanderSloot's reputation locally as a control freak with a penchant for pushing his theological agenda via shell PACs and 527s and *buying* full page ads opposite the local newspaper's 'opinion' page.

We don't dislike him without reason. VanderSloot's pet projects have been ousting judges that disagree with him, homophobic ad campaigns, demonizing boys that sued the Boy Scouts after being sexually abused, lobbying for draconian noncompete laws, and spending six figures on the state Attorney General race... which is why our li'l red-state progressive blog (we're based in Idaho) just cuts to the chase and calls him 'Vader'.

Here's a link to a FAQ I'm trying to maintain on our case & it's status: Melaleuca - 43sb Lawsuit FAQ
1.29.2008 10:13am
d2 (mail) (www):
Also, Volokh, you're not likely to find 'Tom Paine's rumor (43sb pulled that post), or the letter that demanded we pull his rumor posting (which we posted as explanation for our self-censorship). The latter was taken offline when our ISP was served with DMCA paperwork.

I guess, now that I have the FAQ, I ought to figure out how to distill into it the fair-use protected essence of the takedown. Problem is, it all matters. The letterhead, date and sender act as provenance, each word is legally significant... to paraphrase Amadeus, I'm left asking 'exactly which words or characters would you have me remove?'

If anyone here feels particularly brilliant at making a few paragraphs fair-use compliant, don't hesitate to contact me. I'm beginning to think I'll just have to google up a dozen other takedowns and stitch together the equivalent.

Melaleuca - 43sb Lawsuit FAQ
1.29.2008 10:36am
dew:
publish |ˈpəbli sh |
verb [ trans. ]
ORIGIN Middle English (in the sense [make generally known] ): from the stem of Old French puplier, from Latin publicare 'make public,' from publicus (see public ).


This dictionary quote might be a good response if we actually spoke Middle English, Latin, or Old French. We don't, so it isn't especially useful. Quoting the old root word definitions from dead languages as convincing evidence for the modern definition in American English seems (to me at least) a bit amusing- especially when, as in this case, the relevant modern English dictionary definition seems quite serviceable for the point being made. (And in a post about "shifting paradigms" too!)
1.29.2008 10:42am
Bored Lawyer:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.


17 USC Sec. 101.

"A general publication occurs when by the consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur." Penguin Books U.S.A., Inc. v. New Christian Church Of Full Endeavor, Ltd., 288 F.Supp. 2d 544, 555 (S.D.N.Y. 2004). "A distribution of a work to one person constitutes a publication." Id. at 556.
1.29.2008 11:10am
Gene Hoffman (mail) (www):
I like Nimmer but he's not always correct. Thanks bored lawyer for pointing that out. It reminds me that Kohn sometimes notices things Nimmer passes over.

-Gene
1.29.2008 12:32pm
Scrivener:
d2,

Have you looked at all pages of

Exhibit A to 43SB.Com's Reply to Response Brief

on

http://www.citmedialaw.org/threats/melaleuca-v-43sbcom-llc

?
1.29.2008 12:40pm
Bored Lawyer:

Dozier's tactic reminds me of the usenet loons of yore.


Ahhh, internet nostalgia.
1.29.2008 12:57pm
Scote (mail):

Ahhh, internet nostalgia.

Yeah, all though it is usually impossible to win the "well I remember when you had to..." discussions because somebody almost always goes further back than yourself.

As for me, I remember when if you wanted to e-mail someone you had to send them a stack of punch cards...(well, not really...sigh)
1.29.2008 1:19pm
Tony Tutins (mail):
So, per that SDNY decision, tacking the original C&D notice to one's front door is a copyright violation even though no copy was made, because the notice was "made available to the general public," who might pass by the door and stop to read it.
1.29.2008 1:20pm
Tony Tutins (mail):

when if you wanted to e-mail someone

... you sent them a TWX.
1.29.2008 1:21pm
Fub:
Scote wrote at 1.29.2008 1:19pm:
As for me, I remember when if you wanted to e-mail someone you had to send them a stack of punch cards...(well, not really...sigh)
You had punch cards? We had to carve our message into a stone slab with our bare hands. Then we had to train a whole flock of pigeons to carry it. And that was only after we invented a useful alphabet. Kids these days!
1.29.2008 1:32pm
Toby:
You got to use an alphabet? We had to use 0's and 1's. Only we didn't have 0s's and 1's, so we had to use o's and l's...
1.29.2008 3:01pm
Scote (mail):

You got to use an alphabet? We had to use 0's and 1's. Only we didn't have 0s's and 1's, so we had to use o's and l's...

You had opposable thumbs to use o's and i's with? Kids...
1.29.2008 3:10pm
Bored Lawyer:

So, per that SDNY decision, tacking the original C&D notice to one's front door is a copyright violation even though no copy was made, because the notice was "made available to the general public," who might pass by the door and stop to read it.


No. Publication just means that the rights are a bit different. It does not mean that there is an infringement. (The difference today is pretty minor. It use to be a major difference because published works had to have a copyright notice attached, or you lost all your rights in the copyright.)

As far as the one copy sent by the copyright owner, you have the right to tack that to your front door under the first sale doctrine. Or lend it to your friends. (Think of a book. Once I buy it, I can resell it or lend it to my friends.)
1.29.2008 3:43pm
d2 (mail) (www):
Scriv:

Thanks for correcting me -- I'd forgotten that the rumor that started this whole kerfuffle was part of the court record.

It's a bit ironic that the unfavorable extra baggage our dear Senator Larry 'Wide Stance' Craig has accumulated since 'Tom Paine' posted that in April '07 probably doesn't make CEO Frank VanderSloot any happier about seeing his name linked to Larry Craig's.
1.30.2008 11:42am
Tony Tutins (mail):

As far as the one copy sent by the copyright owner, you have the right to tack that to your front door under the first sale doctrine. Or lend it to your friends. (Think of a book. Once I buy it, I can resell it or lend it to my friends.)

If it's ok to make the letter available to look at, then perhaps the recipient could put a routing slip on it and circulate it among the curious. But if that's legal, now I'm wondering if he could put a webcam on it, and let only one person at a time view the letter through the webcam.
1.30.2008 11:54am