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

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Hi my friend: he need help with a cease and desist letter to a collection agency. he paid the bill over 6 years ago and they're telling me he still owe even with the proof I've paid! What do he do and/or does anyone have any examples cited with some sort of legislation in regards to this??

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[Don Han]

This will be fun I will see what my UNCLE can do I will ask what the U.S. Attorney General can do. I will prepare a document with all the details. Federal agents will be looking into the background of everyone on the board and anyone else connected with this organization. Move quickly is the only advise I can give you or try not to run off before someone can come and get you. Thanks your friend The Don of the OC.

[victoria samuels]

Hardship Letter Sample #1

Date
Creditor Name
Address
Phone Number
RE: Hardship Letter for (address of home)

Dear Sir/Madam,

I am currently experiencing a financial hardship because of(explain your hardship here: business failure, medical bills, loss of job, death etc)

Due to my (decreased income or increased expenses) which started (date) I am not able to meet my payments for my original loan.

For your convenience I have included some paperwork which will substantiate my current situation.

Included:

Proof of Income
Late Notices
Bank Statements
Medical Bills
Tax Forms
(include any paperwork that will help substantiate your situation)

I understand my responsibility to repay my loan and have been a loyal customer to (your lenders name) for (length of time you have been with the institution) I am asking for a loan modification. Specifically, I would like to lower my monthly payments to (calculated amount) which is 31% of my gross income. (alternatively you could ask for a short sale agreement, loan extension, fee forgiveness etc)

I am certain my financial hardship will only be temporary. In fact I have taken the extra steps of (getting a second job, reducing my monthly cable/phone/internet bill) and am confident with a mortgage modification I will be able to make my monthly payments on time every time.

Please contact me with any questions at your earliest convenience; (phone number).

Thank you for your time.

Sincerely,

your name

address

phone #

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[Kim smith]

I too am impressed by the legal knowledge this Blog has tapped into. If a company cannot be transparent in it's membership pricing and seven year restrictions up front what else will you find out after the fact. Some of the good comments are rather like authors who rate their own books - a bit over the top in praise and carefully avoiding the negatives others confront immediately.

[Scott]

Did anyone notice that the original letter from the law firm, is using a standard Microsoft Office letter template?

I hate to say it, but that doesn't reflect a high dollar law firm, which one would expect someone as large as DirectBuy (and who threatens to sue in another country as well) to have access to.

[joe]

Ok, allow me to retort! I'd like to play devil's advocate since these comments seem predominantly one sided. I do want to make it clear that I am in no way affiliated with the bully-scheister morris's firm or the highly questionable directbuy suits.

Since I'm too lazy to check, does the infomercialscam site provide verifiable references to prove the victim's claims? If so, wouldn't that be enough to avoid this (potential) lawsuit? And if not, does/shouldn't it disclaim that non-vetted posts are opinions and are not verified? (I get the impression that there should be a good mass of solid evidence to put forth.)

Just because an outfit is probably actually a scam does not mean all claims against it are legitimate! Without hard evidence, we can't truly be certain that the accusations are (all) true. Even if there's a great many of them, that doesn't prove fact, it just proves people like to jump on the bandwagon.

The reason I make this point is simple - what's to prevent claims of scams upon *legitimate* companies? If all you need is a computer and an internet connection to attack and sully an actual honest outfit (again, i'm *not* saying directbuy is honest!) then honest companies are in danger from unscrupulous rival competitors and the occasional disgruntled consumer who is perpetually never satisfied and may not be bound by rationality. (read: 'loopy'.)

The other thing I noticed is that the scheister is right, there does seem to be a lot of people making claims re copyright law and legal issues that may be based on their assumptions and not actual legitimate knowledge of the law. So to those people, disclaim your posts if you are just 'guessing'! And 'emptors' should always be wary of un-vetted legal advice from the random anonymous!

[Presentation board]

Two things are required to counter nonsense like this; intelligence, and the free and open exchange of ideas. The power of this scam is that it takes advantage of the expected ignorance of its target. The hope is that this meme sends Donald Morris and his ilk back to ambulance chasing.

[Kris]

Is it the lawyer's fault?

[pensat, knight, landed gentry]

Sort of funny that the super lawyer wrote "inciteful" (not a word) when he apparently meant "insightful." However, in my opinion, and I do not state this as fact because I know no facts (but I am not writing this with utter disregard for the truth either because I do not know the truth), the word "incite" could be, maybe, appropriate.
BTW, you do not have permission to read this because it is being "copywroted" right this minute down at the firm.

[Arnold Judas Rimmer, SSC, BSC.]

"John W. Dozier, Jr, Asshat."

Fixed it for ya...