Comments on: Copyrighted Cease & Desist Letters: Some Reductios http://www.concurringopinions.com/archives/2008/01/some_copyright.html The Law, the Universe, and Everything Sat, 21 Nov 2009 21:19:19 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Bruce Boyden http://www.concurringopinions.com/archives/2008/01/some_copyright.html/comment-page-1#comment-50551 Bruce Boyden Tue, 29 Jan 2008 00:29:27 +0000 http://www.solove.org/archives/2008/01/copyrighted-cease-desist-letters-some-reductios.html#comment-50551 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. 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.

]]> By: Deven http://www.concurringopinions.com/archives/2008/01/some_copyright.html/comment-page-1#comment-50550 Deven Mon, 28 Jan 2008 20:24:59 +0000 http://www.solove.org/archives/2008/01/copyrighted-cease-desist-letters-some-reductios.html#comment-50550 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? 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?

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