26
Jan
08

From The WTF? Department

I must admit, Techdirt has me wondering just what the hell is going on. I’m going to reprint the whole article here. The gist of it is that if you receive a C&D, even one that was dreamed up and extricated from out of somebody’s posterior, DO NOT post it on your web site. You will┬áthen become a copyright violater.

Back in October, we wrote about a law firm that was claiming a copyright on the cease-and-desist letters it sent out, and insisting that it was a violation to repost them. It’s long been believed that cease-and-desist letters that have no new creative expression and are merely boilerplates are likely not covered by copyright. On top of that, preventing someone from copying a cease-and-desist letter or posting it on their own website seems like a pretty severe First Amendment violation. The group Public Citizen hit back against this law firm’s claims, but surprisingly, a judge has now agreed that you can copyright cease-and-desist letters (thanks to Eric Goldman for emailing over the link). The news was announced in a press release by the lawyer in question, who claims this means he can now sue anytime someone posts one of his cease-and-desist letters. He also goes on to slam those who believe free speech means being able to talk about the fact that a company is bullying them:

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.”

To which I would respond: “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.” This is an unfortunate ruling and can only serve to create a serious chilling effect on free speech.

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2 Responses to “From The WTF? Department”


  1. January 26, 2008 at 7:19 pm

    This strikes me as totally insane. Having a few lawyers in my family, I know that not all cease & desist letters are boilerplate, there are few original writers in the legal profession. I think it’s more likely that these lawyers who don’t want their letters “circulated” are embarrassed by poor writing and legal thinking.

  2. January 27, 2008 at 4:49 pm

    I dunno. Does a C&D, or any other communication from a lawyer, get the infamous copyright warnign at the bottom, now? And why would it be that a lawyer who sends out a C&D in error, or with a faulty basis, is now immune from public ridicule and scorn?


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