Comments on: Jennifer Aniston’s Cease and Desist Letter

By: greglas

greglas — Fri, 09 Dec 2005 14:42:24 +0000

You seem to be saying that law is performative, functional speech in the same way that computer code is performative and functional. This reminds me of Butler’s Exciteable Speech or Catherine MacKinnon’s Only Words — both of them want to problematize the line between speech and action.

Re Ribstein — yes, I think they get it from the analysis in Veeck, which is a fascinating case.

By: Bruce

Bruce — Fri, 09 Dec 2005 06:53:55 +0000

Greg, the “functional” comment is something I just made up, and I haven’t thought too hard about it. I am not aware of any cases; but it looks like Ribstein and Kobayashi say roughly the same thing in Part III (thanks for the link). To be clear, Nimmer’s discussion concerns only witness testimony, and is limited to the suggestion that it may be a “public document.”

BTW, what reminds you of Butler?

By: Joe Liu

Joe Liu — Fri, 09 Dec 2005 02:44:25 +0000

Thank goodness they are asserting their copyrights in the cease and desist letters. Just think – without copyright protection, there would be no incentive to write these things, and the public would be deprived of the fruits of their creative efforts. Oh wait …

Seriously, the copyright claim is laughable. Where is the harm to the market?

By: Greg Lastowka

Greg Lastowka — Fri, 09 Dec 2005 01:53:44 +0000

Bruce — that’s an interesting theory, do you have any case cites on how legal discourse might be “functional” that way other than Nimmer’s discussion? Reminds me of Judith Butler…

I should have pointed this out earlier, but there are some extended writing on this topic. See this from Ribstein and Kobayashi about copyright in legal complaints:

http://home.law.uiuc.edu/~ribstein/classactionfinal.doc

By: Bruce

Bruce — Fri, 09 Dec 2005 00:32:24 +0000

It’s an interesting issue. Theoretically, every letter and e-mail you write is copyrighted, but for e-mails and business correspondence there is probably an implied license allowing the receipient to copy and forward as they see fit. Here, however, the law firm is expressly getting rid of any implied license argument.

Whatever the outcome for ordinary correspondence, I think it weakens the law firm’s argument that this is a legal communication. Legal correspondence and briefs, like computer programs, are designed primarily to achieve a particular effect, and only secondarily as a means of creative expression. Like computer programs, that does not rule out copyright protection entirely, but much of the program/brief/letter will be excludeable under Section 102(b), merger, or scenes-a-faire. If someone writes a brief that achieves a desired result, and I’m litigating the same issue in the same state, I should be able to borrow heavily from that brief — maybe not to the extent of swapping the names on it, but I should at least be able to make it “substantially similar.” See also Nimmer’s discussion of witness testimony at Sec. 5.12[B] (discussing Lipman v. Massachusetts, 311 F. Supp. 593 (D. Mass. 1970)), which he suggests might be a “public document.” It would pushing it a step further, but a cease and desist letter might be thought to have that status as well.

By: Greg Lastowka

Greg Lastowka — Thu, 08 Dec 2005 22:03:54 +0000

The Diebold/EFF case seems worth noting here. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (2004). The posted company emails in that case were arguably subject to copyright, but the claim of infringment was ultimately deemed frivolous by the court.

EFF’s Press Release here:

http://www.eff.org/effector/17/39.php#III

By: Mike

Mike — Thu, 08 Dec 2005 21:46:42 +0000

That firm is famous for sending those letters. Here’s another example. I think it’s unethical for a lawyer to call a garden-variety demand letter as a “confidential legal notice.” It makes it sound official, and it’s misleading.

An ordinary and untrained reader might reasonably think that there is a such a thing in the law as a “confidential legal notice,” and that the letter he received qualifies as one. If it’s not unethical because it’s misleading, then it’s certainly bad behavior.