Federal Court Doesn’t Quite Recognize Copyright in C&D Letter
Techdirt has a post on a rather triumphal press release put out by a law firm claiming that “[t]he US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient.” That’s one way of interpreting the judge’s ruling, but I don’t think it’s the right way.
Here’s what happened. An anonymous poster (“Tom Paine”) said some things on a message board that a company called Melaleuca didn’t like. Melaleuca’s lawyers sent a letter to the message board’s administrators asking them to take down the posts to which they objected. Then, a second anonymous poster (“d2″) posted Melaleuca’s cease-and-desist letter to the message board.
Melaleuca wanted to know Tom Paine’s identity so that they could take some action against him. But bringing a John Doe lawsuit would be expensive and time-consuming. Then Melaleuca had a clever idea: because section 512 of the Copyright Act allows pre-litigation subpoenas to uncover the identities of anonymous online copyright infringers, they could get Tom Paine’s identity by (1) accusing d2 of infringing the copyright in their cease and desist letter, then (2) claiming that d2 and Tom Paine were the same person.
Well, it almost, sort of worked.
They were successful in getting d2′s identity, because the court found the test for issuance of a section 512 subpoena to be a lenient one: If the Copyright Office issues a registration, the court found, that’s all the copyrightability analysis a court must undertake in order to enforce a pre-litigation subpoena under section 512. The court did not say that the C&D letter was copyrightable, or that posting it was not fair use. Instead, the court merely said that Melaleuca had met the low bar of showing a prima facie case of infringement. As the court put it:
[T]he Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.
Unlike the Patent and Trademark Office, the Copyright Office (for various very good reasons) does not perform an in-depth examination of each registration. As the lawyer who put out the press release notes, “a US copyright registration is usually ‘rubber stamped’ and obtained on an expedited basis in about five business days.” Close cases, such as an attempt to register a virtually purely functional work such as a legal demand letter, usually result in the issuance of a registration, the validity of which is later contested in court. The district court in this case decided that the validity of the copyright should be determined after the plaintiffs actually filed their lawsuit for copyright infringement. It did not, as the press release implies, make a conclusive determination of copyrightability.
Melaleuca was thwarted in its ultimate goal of unmasking “Tom Paine.” The court found that Melaleuca had presented insufficient evidence that “d2″ and “Tom Paine” were one and the same, and quashed that portion of the subpoena which sought Tom Paine’s identity. (The edited version of the decision on the web site of the lawyer who put out the press release conveniently leaves that part out, but it makes up a substantial part of the court’s decision, which is available here.)
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[...] I need to get out my Blacks Law Dictionary so I can recall what constitutes fair use. Update: Joe Gratz spent some time reading the actual decision and determined that the court DIDN’T agree that [...]
Pingback by Lawyers seek to muzzle bloggers by use of © : Texas Startup Blog — January 26, 2008 @ 4:38 pm
[...] The Internet is STILL the (as yet not completely tamed) Wild, Wild West! [...]
Pingback by Insider Chatter by Donna Bogatin » Craigslist vs. EveryBlock? UC Berkeley New Media Case Study — January 26, 2008 @ 6:35 pm
Good work Joe. Imagine the royalties on owning the copyright in a cease and desist letter. I thought the story sounded a little fishy.
Comment by Andrew Mitton — January 26, 2008 @ 10:12 pm
[...] UPDATE: More explanation, from Joe Gratz. [...]
Pingback by LIKELIHOOD OF CONFUSION® » Blog Archive » Copyright in cease and desist letters? — January 27, 2008 @ 9:23 am
“Unlike the Patent and Trademark Office”
hahaha
Comment by mind — January 27, 2008 @ 10:03 am
Yeah, OK, but the decision is still way off the mark for what it doesn’t do, namely to dismiss the motion as egregious. It’s clearly egregious and it should have been thrown out of court.
The court doesn’t wish to do an “analysis of the merits of a copyright infringement claim” despite that its ruling clearly requires this analysis. It shouldn’t hand a ‘win’ to the prosecution on account of administrative convenience, or because it has no confidence in its ability to handle the question. Courts are meant to settle disputes, not puss out and prolong them to the point that merely entering discussion becomes victory for the litigious.
-Carl
[cross-posting to reddit]
Comment by Carl Lumma — January 27, 2008 @ 2:33 pm
Thank you for the analysis. Rulings are often misinterpreted through laziness in reading them, lack of understanding law, or intentional FUD. This seems to be a good example of the FUD case. Thank you for putting in the time to do the research.
Comment by Chad — January 27, 2008 @ 2:41 pm
This is one of the web’s most interesting stories on Sun 27th Jan 2008…
These are the web’s most talked about URLs on Sun 27th Jan 2008. The current winner is …..
Trackback by purrl.net |** urls that purr **| — January 27, 2008 @ 4:05 pm
This article does not reflect a good knowledge of copyright law.
A letter is copyrighted. Every letter. One you write. One I write. One an attorney writes. It is copyrighted the instant it is written. While registering copyrighted works has benifits, one does not need to register it with the copyright office for it to be copyrighted. It is copyrighted when produced. So, the claim that the letter is copyrighted is true.
Because it is copyrighted, however, does not mean that the recipient may not tell others about it, as has been claimed. It simply means that the recipient may not copy it and distribute it except under circumstances that are considered fair use.
This is actually a controversy without a basis.
Comment by peter — January 27, 2008 @ 5:46 pm
[...] • Court Says You Can Copyright A Cease-And-Desist Letter and Federal Court Doesn’t Quite Recognize Copyright in C&D Letter [...]
Pingback by tech news blog » Linkpost | 1.27.2008 — January 27, 2008 @ 6:32 pm
Doesn’t this mean that you could simply copyright any anonymous post you wanted, and subpoena for the identity of the poster?
Comment by Shii — January 27, 2008 @ 9:17 pm
Joe;
Well-written article here and on techdirt.
One clarification: the Dozier article (and consequently, articles by slashdot and techdirt) make it sound like Dozier had a hand in this stuff. He didn’t. Frankly, until Friday, I’d never heard of the guy.
Left unspoken in this context is that ‘Tom Paine’ authored the initial article that provoked Melaleuca chief counsel Ken Sheppard’s takedown demand letter. It isn’t a coincidence or misunderstanding of the technical details that they wanted ‘Tom Paine’; we believe his identity was all they ever were looking for.
The slashdot attention at least got me to write a FAQ. Check it out here:
Melaleuca – 43sb Lawsuit FAQ
Comment by d2 — January 27, 2008 @ 9:34 pm
Federal Court Doesnt Quite Recognize Copyright | CommentURL.com…
joegratz.net
Does copyright law protect a cease and desist letter?
Techdirt has a post on a ra…
Trackback by CommentURL.com | A world of interesting web pages — January 28, 2008 @ 2:10 am
[...] since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the [...]
Pingback by Then Again, Posting Cease And Desist Letters May Be Okay teasered @ Feed UP !! — January 28, 2008 @ 3:44 am
[...] of the case have come to light, many of us have breathed a sigh of relief. As others have begun to more thoroughly read the full decision, it is clear that the courts ruling is far from a clean-cut or as life altering as previously [...]
Pingback by Cease and Desist, Copyright and Fair Use : The Blog Herald — January 28, 2008 @ 8:15 am
[...] since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the [...]
Pingback by El Mike’s Internet News Blog » Blog Archive » Then Again, Posting Cease And Desist Letters May Be Okay — January 29, 2008 @ 11:49 am
Thanks for taking the time to read the opinion and write about it. When I first heard the news that copyrighting C&D letters had been upheld by the courts, I felt sorely disappointed in our legal system. I’m thrilled to see that it isn’t really so. I’m glad that you took the time to write something up about it.
Comment by Keith Irwin — January 29, 2008 @ 6:37 pm
[...] for a cease and desist letter is not very hard. The hurdles for federal registration are fairly low and a cease and desist letter may meet those [...]
Pingback by Nolo’s Patent, Copyright, and Trademark Blog » Blog Archive » Don’t copy this (and don’t copy my cease and desist letter, either)! — January 29, 2008 @ 9:08 pm
I don’t know if I’m going to get you in trouble for saying this
but Melaleuca is obviously an evil company, and I will never ever buy their products from this point on. If they’re not evil, then they’ve hired evil lawyers, which a non-evil company would rectify. Unless there’s a swift change, I’ll stick to my original interpretation of the situation.
(If we make that fact as publicly known as possible, they’ll never be able to litigate their way out of it. They would have been much smarter to clean up whatever problem caused the poster to complain about them, and address the issue on the message board rationally and civilly. If they were decent that’s what they likely would have done.)
Comment by Brandon — January 30, 2008 @ 2:03 am
[...] since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the [...]
Pingback by Bill Gates » The Short View: Buffet — February 1, 2008 @ 4:40 pm
[...] for a cease and desist letter is not very hard. The hurdles for federal registration are fairly low and a cease and desist letter may meet those [...]
Pingback by MAeX Artblog » Blog Archive » Don’t copy this (and don’t copy my cease and desist letter, either)! — February 9, 2008 @ 8:55 pm