Posted on 01/26/2008 10:44:43 AM PST by LibWhacker
US District Court decision threatens common practice reports Dozier Internet Law.
Glen Allen, VA (PRWEB) January 24, 2008 -- The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient (Case No. MS-07-6236-EJL-MHW). The copyright decision, in pertinent part, has been made available by Dozier Internet Law, and is the first known court decision in the US to address the issue directly. The Final Judgment calls into serious question the practice of posting lawyer cease and desist letters online, a common tactic used and touted by First Amendment groups to attack legal efforts at resolving everything from defamation to intellectual property disputes.
In September 2007, Dozier Internet Law, a law firm specializing exclusively in representing business interests on the web, was targeted online by "free speech" and "public participation" interests for asserting copyright ownership rights in a confidential cease and desist letter sent to a "scam reporting site". The issue generated online buzz in the US with commentators such as Google's lead copyright counsel and Ralph Nader's Public Citizen attacking the practice as unlawful, and Dozier Internet Law responding. Bloggers from around the world soon joined the debate, reeling at the thought of losing a valuable counter-attack tool.
It's a great day for businesses and a bad day for those conducting illegal activity online The Court, in its decision, found that a copyright had been adequately established in a lawyer's cease and desist letter. The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence plus attorneys' fees that can average $750,000 through trial. The publisher of the letter raised First Amendment and "fair use" arguments without success.
John W. Dozier, Jr., Esq., President of Dozier Internet Law, PC, was not surprised by the decision. "In today's world, anticipating how the Courts will view 'new age' arguments is not easy. Dozier Internet Law has been using copyright protected cease and desist letters for years with great success in protecting our business clients and preventing an escalation of a situation. The publication of cease and desist letters is an easy way for scofflaws to generate online 'mobosphere' support for illegal activity and, until today, many businesses have been hesitant to take action to address some of the lawlessness online because of possible retaliation and attacks."
Dozier Internet Law specializes in protecting the intellectual property and reputations of online business. Mr. Dozier believes that the decision will return pre-litigation notices and negotiations to a state of normalcy and allow businesses to more effectively police their interests online. He noted that prior to the Internet, private legal disputes were handled between attorneys with a focus on avoiding costly legal battles and not burdening the judicial system with legal cases that should have been resolved without a lawsuit. Since the posting of cease and desist letters became a popular practice, fueled predominantly by guidance and legal advice from "free speech" organizations located in the US, businesses have either allowed theft and lawlessness to continue or immediately filed a lawsuit that can take many years to resolve. "It's a great day for businesses and a bad day for those conducting illegal activity online," Dozier said.
Dozier Internet Law, PC is an AV rated, pre-eminent law firm specializing exclusively in the law of the Internet with offices in Virginia, New York, and California. The firm protects the online reputations and intellectual property of businesses.
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Maybe you can’t post a threatening letter, but perhaps you can post a cleverly worded response?
So someone gives me a letter but they retain ownership rights? Sounds like twisted logic.
Perhaps the recipient would have done better countersuing, arguing unauthorized use of his name and personal information in a copyrighted work.
Well that is an excellent suggestion. For that to work we probably needed this ruling. Lawyers helping lawyers, that’s all this decision is about. “Mobo-sphere”?? Oh, you mean citizens exercising their first ammendment rights?
One-sided article, that’s for sure, apparently written by Dozier, a party to the dispute. Still, if it’s even half-way accurate, it seems like it’s pretty bad news.
I’m not for people stealing intellectual property, but what about McDonald’s restaurant in Scotland, which had been in business for a hundred years, suddenly getting an extremely aggressive cease and desist letter from the fast food chain?
Totally nuts if you ask me. Hope it’s overturned.
I believe the copyrights were held to be invalid, allowing the sharks to freely pass along the documents.
All one has to do is just post the most threatening paragraph from the letter rather than the entire letter. Posting the nastiest part of the letter is a news reporting function and is protected by fair use provisions of copyright law.
Why would publishing a letter - sent via public mail and likely to be included in any publicly available court processes - be considered copyrighted?
Exactly.
This ruling is utter nonsense. If someone is using the legal system, the law and the legal processes being used are fair targets for public discussion. To have informed public discussion you need to have the source documents available.
This case is like moveon.org’s scheme to trademark its name and then use trademark protection to suppress criticism. Failed due to public outcry.
Shakespeare was right, Lawyers need to die now, as numerously and as horribly as possible, so that young people will be forever dissuaded from a career working for the dark side.
The fair use doctrine was totally settled until the entertainment industry decided they could make more money by unsettling it.
In the case at hand, copyrighting a cease-and-desist letter would prevent anyone else from claiming the text as his own. It does not prevent someone from posting attributed quotes from it on a website. If the self-interested lawyer is not totally misquoting the judge in this case, then the judge needs to be impeached for being a total moron.
Also covered at Techdirt.
He registered the copyright on that letter, and all the judge did was acknowledge the law, that a register of copyright is prima facie evidence of copyright. This wasn't even a copyright case about the C&D. It was just an abuse of the DMCA, leveraging the copyright of the C&D to reveal a poster's identity for another purpose.
And the test for Fair Use or First Amendment was never made. They would probably win since having all of our law out in the open is a time-honored tradition for ensuring fair process, and posting C&D letters on the WWW has been around for a while given the age of the WWW (I saw one first six years ago).
BTW, likely won’t be overturned since the defendant ran out of money.
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