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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 02:07 PM | Permalink | Comments (4)

Comments

I think he loves the negative attention.

Posted by: | Jan 29, 2008 2:27:55 PM

I think he just wants the links and the Google pagerank that goes with it. And he's getting it.

Posted by: InternetSavvt | Jan 29, 2008 6:12:34 PM

You have said the bottomline Prof. Marc, the author of the cease and desist letter must not put down confidential or privileged information.

Maybe he just wants satisfaction!

Posted by: Avish Sharma | Jan 29, 2008 10:54:01 PM

If copyrighting Cease & Desist letters stands up, would the same rule not apply to all transactional documents, concerning which I am thinking of those tax-shelter schemes the papers for which I read they didn't even let the clients keep copies, that were somewhat over the top in creativity and led to the demise of at least one major law firm when the IRS challenged them, and possibly creative litigation, documents?

Not being a copyright expert, I have always understood that anything filed for public or court record could be republished or used freely. The transactional and litigation form books with advice, I have bought and used never tried this kind of licensing gambit on top of the price of the sets and upkeep yet, and I hope they don't.

The great detailed hand-outs at Dallas Bar Association clinics, some of which were copyrighted, were clearly expected to be used that way, and some authors said they could be used if properly adapted to clients' individual circumstances.

I did learn of a case in which one lawyer, foolishly and dishonestly, replaced the cover page on one such hand-out speech and article, and submitted it to his client, opposing counsel, and the court, as his own billable work, but that is quite different from either using language from one or posting it in a controversy.

The author of one such noon clinic outline memo, styled "Obstruction of Justice & Other Lawyer Nightmares," which had guided me through a new area of law to me in a high-profile federal case, was pleased that I had both used and benefited from it, and shared it, in full including his name and credentials, with the government and private lawyers in D.C. involved in the case, among other such handouts from CLE functions that have save me time and work, made me money, or both.

It would also appear that a cease and desist letter or other such communication or document would be treated differently in this respect than, for example, the private letters of "Christian Science" founder Mary Baker Eddy, the recipient of which I seem to recall was held liable, long ago, on some theory for publishing them without her consent. for one thing, a Cease & Desist letter is intended to deter anyone else who might actually or allegedly a ommit such an actual or alleged infringement. Publication may be one of the only ways to hold an overly-zealous company or attorney to account for abusing the process, too.

I have not read them, but some such cease & desist letters from lawyers to lay people of which I have read on this and other sites would raise serious questions and potential violations under Disciplinary Rules of Professional Conduct and official opinions thereunder, dealing with collection and other letters, with which I am, and anyone drafting one of these should be, very familiar.

If I have just proved myself uninformed and foolish,, please let me know.

Posted by: Peter Chamberlian | Jan 30, 2008 4:04:48 PM

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