Don't Post This Cease-and-Desist Letter, Or Else

by Greg Beck

DirectBuy is a company that claims to offer a deal on furniture and home supplies by letting consumers buy directly from the manufacturer. Apparently, the company doesn't want you to hear from customers who don't think the deal is such a good one. The company's law firm, Dozier Internet Law (which specializes, among other things, in using copyright law to "get websites pulled down without notice") sent a strongly worded demand letter to the owner of InfomercialScams.com, claiming that consumer complaints on the website are defamatory because they refer to the company's direct-buy plan as a "scam" and a "nightmare."

Of course, words like "scam" and "nightmare" are subjective statements of opinion. If consumers think a product is a scam, who can prove them wrong? Because the statements identified by DirectBuy are pure opinion, they are protected by the First Amendment and can't give rise to liability for defamation. Even if the complaints were not opinion, however, the Communications Decency Act would protect the website from liability for its users' posts. The demand letter is therefore completely without merit.

Nevertheless, DirectBuy's lawyer, Donald Morris, relies on an extraordinarily broad reading of the Ninth Circuit's decision in Fair Housing Council v. Roommates.com to claim that InfomercialRatings.com is liable for "encourag[ing] and solicit[ing] defamatory statements." Even worse, Morris threatens to file suit in Canada, because DirectBuy does business there in addition to the United States. And, to top it off, he claims that his threat letter is copyrighted, and that to post it online would give rise to copyright liability.

Companies trying to quash complaints by consumers on the Internet often send bullying letters like this, demanding that criticism be taken offline. These threats are often effective against small website operators who can't afford the cost of a legal battle, especially one filed in a distant forum or another country. Before the Web, there was little disincentive to sending such a letter. Now, however, companies realize that their demand letters may end up online, resulting in further embarrassment for them (a phenomenon for which Mike Masnick coined the term "Streisand Effect"). Copyright claims like the one in this letter are becoming a common method to counter that problem by scaring recipients into keeping quiet. It has so far been a successful strategy  -- DirectBuy's lawyer claims that none of his similar demand letters, until now, have ever been posted online.

Public Citizen decided to post the letter on its website because it is only possible to understand our letter in response by seeing the letter we are responding to, and because we think Morris's letter is a good example of the many meritless threats that companies hurl at their online critics in an effort to silence dissent. We also don't think the copyright laws prevent us from posting the letter. First, the letter is not registered with the copyright office, and until it is, DirectBuy's law firm can't sue to enforce it. Second, posting the letter is a clear example of fair use. Companies should not be able to make threats and then hide from criticism behind the Copyright Act.

Paul Levy wrote Public Citizen's response, titled "How not to write a cease and desist letter."

Comments

[tribal elder]

The letter really wasn't copyrighted ? Donald Morris, Esq. LIED ?

[Lisa Westveld]

I have a simple suggestion. Let all website owners put a copy of that strongly worded demand letter at http://www.citizen.org/documents/directbuycd.pdf on their site or at least link to it. Of course, with an additional text around it explaining why it's on the site to make sure this document is fairly used. Let's just bully the bullies. :-)

[random person]

everything that is created is protected by copyright by default.
not registering your creation with the library of congress does not mean you do not get to sue for copyright violations, it merely limits you to actual damages and not statutory damages.

[Greg]

It's true that a work can be copyrighted even if it's not registered. However, registration is a prerequisite to filing suit. 17 U.S.C. § 411(a) ("[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."). The law firm could still register the work and then sue for infringement, but even if it could get past the fair use defense, its damages would be limited by its failure to register before the alleged infringement.

[stupidrecordcompany]

Forwarded to http://www.chillingeffects.org/

[mbclimber]

This is a truly interesting illustration of legal chicanery on the part of DirectBuy's legal representation. Just a shining example of the lengths that attorneys will go to collect a fee for an unnecessary service. I am however glad that there are other lawyers who are willing to stand up against statutory bullying such as this

[John]

Copyright status for email communications is absurd.

They CC'd DirectBuy, thereby giving up all rights to anything resembling a private communication. Post it wherever you want.

Check out this article: http://dailyheadlines.uark.edu/10699.htm

[blayne]

Absolutely brilliant response!

[blayne]

Absolutely brilliant response!

[Scott]

I am confused, isn't any letter involved in litigation a matter of public record? And doesn't cease and desist fall under that as well?

[Marvin Glenn]

Is there a legal premise by which someone can reject any incoming correspondence that is copyrighted? i.e. "You can send me a letter, but it will not be accepted if you have extreme copyright restrictions on it." Therefor leading to, "you cannot legally establish that we've been put on notice, because you have not sent the acceptable communications to that effect."

[Chris]

Thanks for sharing this C&D letter and your brilliant response to it with the public.

In addition to hosting the C&D letter on your own web site, please consider sending a copy to http://www.chillingeffects.org. I'm not affiliated with them, but believe it's a great resource.

[marcelo bezerra tavares]

The fact is, even if it would be possible to copyright a letter with or without copyrights registration, the lawyers couldnt use this kind of letter to threat anyone, based on false rules, laws that doesnt exist or any other unsupported argument, this is the most idiot bluff i ever seen, just to not say that is a shame for any lawyer that tries to do this kind of thing with people out there.
rtfm.

[A Better Writer]

Although I enjoy a good parry, I have to say that neither the author of the cease letter, nor the attorney who responded from Public Interest are particularly skilled writers.

Let me guess, second-tier law schools?

[Doug V]

Bravo, thank you for taking the time to respond to that threatening letter. And for posting it so that others can see how the technique of intimidation is used in a real situation.

[Marc Holt]

Actually, under copyright law a document does not become copyright until it is published in a public place by the creator of that document. And, as 'random person' pointed out, Morris can only go to court if he registers copyright with the Library of Congress. So, Donald Morris, Esq. not only lied, he showed his complete lack of understanding of copyright law.

I would not only post the letter everywhere I could, I would also ignore his threats. The man is obviously a buffoon.

[James M]

"Is there a legal premise by which someone can reject any incoming correspondence that is copyrighted?"

Considering that a C&D letter has no legal meaning in the first place, it makes no difference.
A C&D letter is signed by a lawyer. A postcard from Aruba from your family lawyer is signed by a lawyer too. It's legally meaningless. Now, maybe at some point, someone testifies that "on some date I communicated my grievances to so-and-so in this letter." But even then it has very little if any specific legal meaning.

The copyright is a red herring and will never, ever be addressed. Even if Morris takes the bait, it would be a very long row to hoe to convince a judge that the copyright notice was reasonable. (For one thing, it doesn't even give the defendant a license to make a copy for his lawyer or to submit to the court. It could backfire, showing "bad faith" on the part of the plaintiff, and cost them the rest of the suit.)

[Dave]

I just want to say to all who have posted that I am really impressed with the level of intelligence of the articulate, well thought-out comments on this matter. Congratulations to all on raising the level of Internet forum postings. Also, DirectBuy should really consider sucking it.

[Dave]

I just want to say to all who have posted that I am really impressed with the level of intelligence of the articulate, well thought-out comments on this matter. Congratulations to all on raising the level of Internet forum postings. Also, DirectBuy should really consider sucking it.

[Austin Ziegler]

Canada may not have the First Amendment, but it does have the Charter of Rights and Freedoms, which provides much of the same protections as the Bill of Rights. There are a few other protections provided that aren't covered under American law, either. (Caselaw may be different.)

[Jerry Kindall]

Actually, under copyright law a document does not become copyright until it is published in a public place by the creator of that document.

No, it is copyrighted when it is fixed in a tangible form, i.e., written down (or typed into a computer).

[Alan]

It's not necessary to "register" a copyright for it to exist. Doing so just makes it easier to claim damages if an infringement should occur.

So while I think it's absurd for the lawyer to claim copyright on a business letter, (copyright is supposed to protect expressions of creativity, not business negotiations) registration or otherwise has no bearing.

[Alex]

When Directbuy phones me (three times in the last two months) I engage and hang up. The last time they called I said hello and they answered, "Sorry, wrong number". About three years ago they phoned and I pulled up the CBC's Marketplace program segment on them, and reiterated it to the telephone rep. They used to be known by another name, UCC Total Home:

http://www.cbc.ca/consumers/market/files/services/ucc/index.html

[Lawrence]

I think it's rather nice of Dozier Internet Law to refer to themselves as "spam lawyers" offering to defend senders of unsolicited email.

http://www.cybertriallawyer.com/commercial-email-spam

[Jeremy]

Blogged it :)