by Paul Alan Levy
Last fall, Greg Beck blogged here about a law firm's cease and desist letter that demanded suppression of consumer criticisms of Direct Buy, and closed with a threat to sue for copyright if the recipient of the letter had the audacity to post the cease and desist letter on his web site. Although the widespread discussion that followed this posting (including a fair amount of ridicule) apparently had the effect of inducing the firm to leave such threats out of future letters, the firm's proprietor, John Dozier, can’t let go of his theory that such a copyright suit could be brought and not laughed out of court.
A Dozier press release proclaims that a recent decision from a federal judge in Idaho “has found that copyright law protects a lawyer demand letter posted online,” that the decision “recognizes copyright rights in Cease and Desist,” and that the publisher of the letter “raised First Amendment and fair use arguments without success.” Consequently, Dozier claims that unauthorized publishers of demand letters “can subject the publisher to liability” for statutory damages “as much as $150,000 per occurrence plus attorney fees that can average $750,000 through trial.” And, he concludes, the ruling returns C&D letters to “a state of normalcy” because businesses can send them without having to be afraid that the letters will be posted for the public to see and ridicule.
This would certainly be chilling if it were an accurate portrayal of the decision (which was not appealed because the blogger ran out of money and could not find pro bono appellate counsel). But Dozier seems not to have read the actual decision carefully. The ruling reveals something else – disturbing in its own way, but not what Dozier claims.
The underlying ruling granted in part and denied in part a motion to quash a subpoena issued under the Digital Millenium Copyright Act to the host of the “43rd State Blues” blog, seeking to identify two posters to that blog – “Tom Paine,” who claimed that certain documents about to be unsealed in litigation involving an Idaho company called Melaleuca would reveal unflattering information involving Senator Larry Craig, and “d2", who posted the cease and desist letter sent by Melaleuca to the host of the blog. The C&D letter threatened to sue the blogger for damages if the Tom Paine post was not removed. (Apparently, the C&D author did not understand that a federal statute protects bloggers against liability for allegedly defamatory material posted by others). Section 512(h) of the DMCA allows the issuance of subpoena, without even the existence of an underlying lawsuit, to permit a copyright owner to identify persons who posted copyrighted material online so that legal action can be taken against them.
In seeking to identify not only the poster of the cease and desist letter but also the target of the cease and desist letter, the would-be plaintiff speculated that the target might be connected to the poster. The blogger, in turn, argued that the C&D letter was not copyrightable, that the posting of the letter was protected by fair use, and that, in any event, enforcement of the subpoena to identify anonymous posters would violate the First Amendment. The briefs can be found here.
The decision recites, however, that at the hearing, the blogger limited his arguments to “two main points – (1) whether the [C&D] Letter is a copyrightable work; and (2) that the subpoena should be quashed at least with respect to the individual with the username ‘Tom Paine.’ ” (Decision at 3). On the first issue, the court decided that because the sender of the cease and desist letter had registered a copyright in the letter, the registration was enough to create a prima facie case of copyrightability and although the blogger “has valid arguments” for consideration on the merits of a copyright suit, a prima facie case of copyright infringement was enough to warrant enforcement of a DMCA subpoena. Decision at 6-7. But as to the anonymous poster Tom Paine, the target of the cease and desist letter, the judge ruled that there was no showing that he was connected to the posting of the cease and desist letter, and so that part of the subpoena was quashed. Decision at 7.
The blogger then revealed to Melaleuca that he, himself, had posted the cease and desist letter on the blog. So far, Melaleuca has not filed the threatened copyright suit against the blogger. Did it in fact advance a copyright claim in good faith? Or did it take advantage of a spurious copyright claim as an excuse for trying to identifying its anonymous critic? Although the DMCA provides a cause of action for misuse of the DMCA, it regrettably appears only to provide for damages caused by removal of the challenged material, not for bad faith use of subpoenas to obtain a poster's identity. Perhaps there is an action for abuse of process?
Eric Goldman and Sam Bayard have criticized the magistrate judge for failing to consider fair use in a 512(h) subpoena case, and for resting on the copyright registration as being sufficient to support a subpoena even if the copyright claim itself might ultimately fail. Goldman also points to the case as an obvious example of a misuse of DMCA subpoenas for the ulterior purpose of punishing a dissenter. These are fair criticisms, although reading between the lines of the decision, one might wonder whether this is a case of a judge splitting the baby, enforcing part of the subpoena identifying a poster who cannot be sued successfully for copyright infringement while protecting the important First Amendment interests of the anonymous critic.
The hearing transcript is not online, so we cannot be sure exactly what arguments were conceded, but there is every reason to believe that the judge did NOT reject either the First Amendment or the fair use arguments – he seems to have avoided them by ruling for the one party on whose behalf they were still being pressed by the end of the hearing. Nothing supports Dozier’s claim that the case stands for the proposition that a cease and desist letter is copyrightable, not to speak of the propositions that posting of such letters is neither fair use nor protected by the First Amendment.
Has anybody out there litigated against Dozier? Are his briefs as sloppy as his press releases?