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Are Cease-and-Desist Letters Subject to Copyright?

When hit with a heavy handed cease-and-desist letter, many recipients choose to fight back in court -- the court of public opinion, that is.   In what's become a common practice (which we've discussed here and here), recipients of cease-and-desist letters now routinely post them on their Web site in an effort to publicly embarrass or e-shame the sender. 

In an effort to deter public postings of cease-and-desist letters, one lawyer, John Dozier has asserted that the letters themselves are subject to copyright, and that those who post the letters violate copyright law. Dozier claims that an Idaho federal district court agrees with him in this recent decision which purports to hold that cease-and-desist letters are protected by copyright law.

Most bloggers disagree with Dozier's characterization of the case.  In this lengthy analysis, Professor Marc Randazz dissects the Idaho decision, step by step, explaining that the copyright issue was tangential to the main question of whether an anonymous defendant could quash a subpoena issued by a copyright holder.  The court found that the copyright holder had demonstrated enough of a copyright interest in a demand letter to establish a prima facie case necessary to obtain a subpoena.  In addition, the court did not address the fair use issue, which Randazza also believes would insulate a person posting a cease-and- desist letter from liability.  Randazza concludes:

In short, while this is not legal advice, I’d say that if anyone out there wants to reproduce a cease and desist letter as an act of self-defense, you should feel comfortable that the fair use defense will back you up.  And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

Volokh analyzes the same issue, reaching a similar conclusion.  And while Victoria Pynchon also agrees, she cautions that those who are hit with cease-and-desist letters should, if they have the financial means, seek legal counsel on an appropriate response.

In the meantime, the controversy is generating plenty of visibility for John Dozier, who raised the claim to begin with.  In your view, does this kind of publicity -- which is generally critical of Dozier's position -- help or hurt his practice?

Posted by Carolyn Elefant on January 29, 2008 at 05:07 PM | Permalink | Comments (4)


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