Copyrighted Cease & Desist Letters: Some Reductios
posted by Frank Pasquale
Guest blogger Bruce Boyden has noted some fascinating systems challenges for copyright law. A conflict currently playing itself out online indicates the extraordinary conundrums strictly enforced copyrights could lead to.
At the Consumer Law & Policy Blog, Paul Levy describes an attorney’s effort to keep recipients of the attorney’s cease & desist (C&D) letters from posting them online. Here’s the attorney’s description of the case:
In September 2007, Dozier Internet Law . . . was targeted online by “free speech” and “public participation” interests for asserting copyright ownership rights in a confidential cease and desist letter sent to a “scam reporting site”. . . .
[A court has now] found that a copyright had been adequately established in a lawyer’s cease and desist letter. The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence plus attorneys’ fees. . . . The publisher of the letter raised First Amendment and “fair use” arguments without success.
But what about doctrines akin to the fact/expression dichotomy, or the lack of copyright in government works? I’d welcome an extension of openness principles only partially recognized in Veeck. In that case, the 5th Circuit ruled that a model building code entered the public domain once it was adopted as law. Good legal arguments are effectively an interpretation of law, an effort to get the judge or jury to see the law in a certain way. To the extent they are adopted, they should be considered so inextricably intertwined with the development of law itself that they are by nature public property. For that reason I’d even be hesitant to grant copyright protection to the expression of legal arguments in particular cases (as long as there is attribution), because one’s ability to reproduce, discuss, and expose those arguments to public view directly relates to their likelihood of being adopted.
Eric Goldman and Sam Bayard offer further commentary on the decision. I won’t reiterate their discussion, but will simply ask: is Dozier’s position that *any* copy of its C&D letter must be authorized by him? What if a court requires me to copy the C&D letter for its purposes? What if a lawyer wants me to fax the C&D letter to him?
Dozier’s rhetoric focuses on a privacy interest in the C&D, but copyright is designed to stop copying, not disclosure. Had the defendant described the letter and only quoted briefly from it, Dozier’s copyright case would be very weak (perhaps nonexistent). So copyright could easily be overinclusive here.
Dozier might respond: I won’t sue if you simply reproduce the letter for another lawyer. But he has no obligation to make that disclaimer. And without it, I wonder if any copy of the letter might be made without risking some liability. Dozier may say that he is obviously only worried about widespread publication–but someone trying to avoid a suit would still be at Dozier’s mercy in defining what constitutes “widespreadness” and what does not.
I will admit that Matthew Sag & Mark Schultz have done a good job responding to many copyright reductiones ad absurda and their reassurance may well cover these cases. Nevertheless, the Dozier case may well come to stand for the extraordinary chilling effect copyright can have. . . .and how well it can “throw a spanner in the works” of copying and distribution practices thought uncontroversial for decades.
January 28, 2008 at 11:26 am
Posted in: Intellectual Property
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Responses (2)
Deven - January 28, 2008 at 1:24 pm
I knew of a company that was so proud of its contracts it tried to invoke copyright to prevent others from using them for their own contracts. Of course when a negotiation began one attorney siad we can’t proceed. Why? Well we aren’t allowed to make edits or copies so I guess the deal is off.
As to the post’s main point, is there an exception for legal documents in play here? There is I think a judicial privilege that grants immunity for libel and slander for court proceedings. So even though one writes a cease and desist so as to avoid a declaratory relief action, it seems that one cannot try and limit use for an unsolicited letter that has legal overtones. If one needed to use the letter to go to court or consult an attorney to see what the implications of the letter are as Frank notes you must be able to that.
Maybe the unsolicited aspect of the letter is a way to think about it. After all, one opens the somewhat threatening letter only to find some sort of restriction? Could this be a sort of copyright misuse?
Bruce Boyden - January 28, 2008 at 5:29 pm
Eugene Volokh has a post up over at the VC about why this decision doesn’t mean very much; it certainly doesn’t mean what the Dozier firm is claiming, that a court has found that every posting is infringement. Rather, the court only held that there’s a prima facie case of copyright, as evidenced by the registration. And I seriously doubt courts are going to pick this ball up and run with it.
Nevertheless, the idea that C&D letters are even copyrightable seems somewhat troubling. But there’s a couple of questions to be separated out here. One, there may be — I’ve heard this theory bandied about — a “litigation privilege” that protects copies that are necessary to proceed with a litigation. That would stop your slippery slope. However, this may be one of those things that’s so obvious it’s never been litigated. When I searched for discussion of a litigation privilege in cases or treatises a few months ago, I found zilch.
Even if there is such a privilege, it would probably not apply to public posting of a document online by people not involved in the litigation. I’ve claimed here or on Prawfsblawg that legal documents strike me as importantly functional, but even if that’s true I’m not sure it would eliminate the entire letter.
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