more on Copyrighting Cease and Desist Letters?

[David Farber <dave () farber net>]

------ Forwarded Message
From: Wendy Seltzer <wendy () eff org>
Date: Wed, 05 Jan 2005 17:26:51 -0800
To: <dave () farber net>
Subject: Re: [IP] Copyrighting Cease and Desist Letters?

Hi Dave,

We've seen a few of these copyright or confidentiality claims on
cease-and-desist notices submitted to Chilling Effects, but we've
never had any problems posting the letters.
<http://www.chillingeffects.org/>

We feel confident that posting annotated letters to help people
understand the legal claims doesn't violate any of the senders'
rights -- and we have seven major law school clinics and EFF on board
with the project.  We're currently posting 870 notices sent to
individuals and companies like Google.  Some of these are valid legal
claims; some are spurious threats meant to chill legitimate speech.
Our annotations aim to help people tell the difference, and to show
the "chilling effects" of bogus threats.


Thanks.
--Wendy
--
Wendy Seltzer -- wendy () seltzer com || wendy () eff org
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School
Chilling Effects: http://www.chillingeffects.org

At 5:29 PM -0500 1/5/05, David Farber wrote:
> ------ Forwarded Message
> From: Joseph Lorenzo Hall <joehall () gmail com>
> Reply-To: <joehall () pobox com>
> Date: Wed, 05 Jan 2005 13:43:38 -0800
> To: Declan McCullagh <declan () well com>, Dave Farber <dave () farber net>
> Subject: Copyrighting Cease and Desist Letters?
>
> 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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>
>
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-- 
Wendy Seltzer -- wendy () seltzer com || wendy () eff org
phone: 415.436.9333 x 125 // cell: 914.374.0613 // fax: 415.436.9993
Staff Attorney, Electronic Frontier Foundation   http://www.eff.org/
454 Shotwell Street, San Francisco, CA 94110
http://cyber.law.harvard.edu/seltzer.html

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