[Yes, the C&D letter is copyrighted; the real question is (or should be)
whether copyright law extends so far as to prevent the recipient from
redistributing it freely. ChillingEffects.org gets around this problem
by providing a modicum of commentary with the nastygram. --Declan]
-------- Original Message --------
Subject: Copyrighting Cease and Desist Letters?
Date: Wed, 5 Jan 2005 13:43:38 -0800
From: Joseph Lorenzo Hall <joehall@private>
Reply-To: joehall@private
To: Declan McCullagh <declan@private>, Dave Farber <dave@private>
Hi Declan, Dave,
I thought either or both of you would be interested in this.
Attorneys for a resort are claiming that a cease and desist letter
that they sent in a trademark issue is covered by copyright and,
therefore, not forwardable. (The below is written in [Markdown][0]
format.)
best and happy new year, Joe
[0]: http://daringfireball.net/projects/markdown/
----
http://pobox.com/~joehall/nqb2/index.php/2005/01/05/copyrighting_candds
### Copyrighting Cease and Desist Letters? ###
*Can attorneys claim copyright in cease and desist letters they send
(to prevent them to be forwarded)?*
[TechDirt][1] has an interesting story up, ["Since When Is It Illegal
To Just Mention A Trademark Online?"][2]
The trademark issue between [Urinal.net][5] and the [Marco Beach Ocean
Resort][6] is not what I find interesting (that is, it's clear that
the site is using it in a descriptive sense, and in terms of trademark
jurisprudence, this is [fair or nominative use][7].)
What interests me is the following (from the TechDirt post):
> I asked the maintainers of the site if I could see a copy of the
cease & desist, but apparently **the lawyers claim that the cease &
desist is copyrighted to them and that the recipient is not allowed
to forward it to anyone.** I wonder if that means they can't even
forward it to a lawyer? So, as far as I can tell, the [Marco Beach
Ocean Resort][6] seems to think that [...] any cease and desist is
to be some sort of "secret" cease & desist that can never be shown
to anyone, which seems to go a bit beyond what rights copyright
gives them.
This is pretty silly and, if true, would have major implications for a
site like [ChillingEffects.org][8] (created by w00t! [Wendy][9]).
First, to file a copyright infringement lawsuit against
[Urinal.net][5], [MBOR][6]'s attorneys would have to register the
copyright in the C&D with the copyright office, and there's a small
but real chance that it would not be issued (sometimes, under a "rule
of doubt" the Copyright Office will issue the registration but send a
letter saying that the work may or may not be copyrightable. A court
would have to determine this for sure.).
Attorneys claiming that they have a copyright in a C&D? Well, lets
check the four factors of fair use that would be weighed in a
copyright infringement lawsuit:
* **purpose of the use** - (I was trying to avoid having to go to or
link to [Urinal.net][5], but I just did.) The only thing
commercial about this website is the Google AdWords at the bottom
(they do have a sad-if-true and funny-any-which-way ["Career
Opportunities" page][10]: "Throw your career in the toilet! -
Urinal Dot Net is Hiring!").
It would seem that this site's use of a C&D - likely for display
purposes, if any - would more than likely be non-commercial (I
can't imagine that they'd start to sell viewings of the C&D letter
or start selling t-shirts of the C&D!).
* **nature of the work** - Unless these attorneys are damned
creative, I can't imagine that there's much in the way of
creativity in a trademark-related C&D letter. It would seem that
most of the text would be factual and legal prose (that they
likely ripped off of other attorneys within or without of their
firm).
* **amount of work taken** - Well, to publish the C&D, they'd want
to publish the whole thing, like a scanned image.
* **effects on market for the work** - The idea of attorneys selling
their carefully crafted C&D letters is hilarious. I can't imagine
anyone would buy them, much less how they'd advertise them for
sale.
So, in short, only one of the four factors (amount) would seriously
weigh against [Urinal.net][5]. They should post the C&D to let the
world see what ridiculous claims the lawyers for [Marco Beach Ocean
Resort][6] are making.
[1]: http://techdirt.com/
[2]: http://techdirt.com/articles/20050105/0132239_F.shtml
[3]: http://tygar.blogspot.com/
[4]: http://www.bloglines.com/blog/tygar
[5]: http://urinal.net/
[6]: http://www.marcoresort.com/
[7]: http://www.publaw.com/fairusetrade.html
[8]: http://www.chillingeffects.org/
[9]: http://wendy.seltzer.org/blog/
[10]: http://urinal.net/jobs.html
--
Joseph Lorenzo Hall
UC Berkeley, SIMS PhD Student
http://pobox.com/~joehall/
blog: http://pobox.com/~joehall/nqb2/
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