Many plaintiffs’ lawyers have made a practice of claiming copyright in demand letters and cease-and-desist correspondence as a way to discourage recipients from posting the letters online and airing their disputes in public.
There have been a few new developments on this front recently, chronicled by Patry (here). For one, Virginia law firm Dozier Internet Law, P.C. posted a press release touting a victory in court regarding the copyrightability of cease-and-desist letters. It is important to point out that the magistrate judge’s decision in the matter did not endorse the full scheme of preventing the posting of received legal correspondence through the assertion of copyright, but rather it analyzed whether there was a prima facie case of copyright infringement for the purpose of passing on the propriety of a subpoena issued under the DMCA. There was no discussion of defenses of misuse or fair use. (Public Citizen’s take is here.)
In another case about which Patry blogs in the same post, a Louisana federal court held collections letters were copyrightable. Again, the holding is limited.
If there is a trend developing here, I would be very upset. If courts approve the use of copyright as a tool for bullys to keep their victims from squealing, it would be a real tragedy. I hope that is not the case. I am not too worried as of yet.
There are, of course, many important public policy arguments to be made about this issue. What is of particular interest to me, however, is the interest law professors have in using these letters as educational tools.
In Hollywood, one particularly famous wielder of copyright threats in nastygrams is California celebrity lawyer Marty Singer and his firm, Lavely & Singer P.C.
Pouring over Lavely & Singer C&D letters is an essential part of my Entertainment Law course. And I’ve reposted several on my class website, most of which I’ve been lucky enough to get from the Smoking Gun.
The study of law requires learning more than doctrine. It is important for students to understand how mere incantations of the law can cast a shadow much bigger than the law itself. It is strange, but true: Threats of legal action can effectuate restraints of freedom far in excess of what courts would order. In some courses, reading C&D correspondence can be as crucial as reading cases.
Comments