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

[Sean Heeger]

As far as I'm concerned, 1.) if someone gives me something, it's mine under the 9/10th rule and I'm free to do as i please with it (such as a letter). 2.) If I remember something, that proves i copied it to memory, so i must already have copyright permission.

Yes, it's that simple.

[Advance-Fee No-Markup-Scam]

Even as you read, this scam, which is nothing more than and a variation of the "Advance Fee Fraud" scheme, is parting yet more of the "something for nothing" crowd from their money.

Here's how it works: the potential victim is baited to call for more information after seeing a tempting infomercial and how on the "inside" someone can get better deals or a telephone "tickler" call is made to a potential victim and an informative letter or brochure is sent afterwards inviting them to an open house so they can see for themselves how much others like them have saved and how much they themselves would save, along with some form of an invitation to join. The letter and subsequent follow-up telephone calls promise rich rewards of savings by buying direct from the manufacturer, at cost, with no Mark Up, No Middleman if only they were "members" of this so called highly esteemed and long time in business organisation. Typically, the pitch at the open house includes mention the so called fact that tens of thousands of other smart and savvy consumers have saved along with a slick selection of what they have saved on -- and you, too, can begin saving as soon as you join this elustrous group by signing a "membership agreement" costing thousands of dollars payable in advance of receiving any benefits - you are told that amount is paltry compared to the savings you will obtain over a 10 year period - and you must sign the contract on a now or never basis. You are even made to feel stupid if you don't sign - only a fool would not take advantage of the savings - spend a little to save a lot sort of thing.

If you're not saying "scam" by now, you should be. Should you agree to participate in this Advance Fee savings scam, something will go wrong. Savings evaporate ... or.. Wrong or defective merchandise will be ordered ... or ... Order delays ... or ... Order mishaps and screw-ups. You will not be allowed to cancel your "membership" and get out of the deal.

If you decide to order merchandise, money from you, in advance of receiving the merchandise -- an insignificant sum, really, in light of the windfall of savings about to land in your lap -- will be required to order merchandise without any written guarantees of actually saving money.. You pay, you wait for the merchandise . . . and all you'll get in return are more excuses about why the order is held up and assurances that everything can be straightened out if you'll just be patient and wait a little while longer or send a bit more to pay for this or that price increase. Once you start making threats, these scammers will threaten to sue you if you don't make good on your end of paying for the membership contract in full.

Beware that the Membership Agreement is in reality nothing more than a legally binding sales contract that may have been glossed over in light of all the savings you are excited about expecting. Carefully look at it - it contains NO GUARANTEES OF SAVINGS - instead there is a "NO ORAL PROMISES" clause: "No oral promises or statements not contained in this Membership Agreement shall bind or obligate the club." It's like a get out of jail free card - they can tell you anything pie in the sky in the open house tour or over the phone to get you to join, but once you sign the sales or Membership Agreement, you agree to the NO ORAL PROMISES clause! So what happens if it turns out not to be what you expected? Ouch. Too late. You're stuck. That NO ORAL PROMISES clause comes back and bites you. Want a refund? Beware that the Membership Agreement states: "Members understand this program is not sold on a trial basis and that no refund of membership fees will be made." So you only partially paid on your contract and think that you're just not going to pay the rest of the contracted amount? -- beware that the Membership Agreement states further: "Members do not have the right to terminate the Membership Agreement without paying the amount remaining for this Membership." And if you think you're going to get a refund because you never found anything cheaper and therefore didn't use the club, think again. There's a clause in the Membership Agreement about this too: "The Membership Agreement is not conditioned on the use of this Membership."

In a nutshell, the con works by blinding the victim with promises of an unimaginable fortune of what others like them have saved, what they could have saved if only they joined earlier, and what they can expect to save by joining now. Once the sucker is excited and sufficiently glittery-eyed over the prospect of what he or she would do with all the money he will save, he is then squeezed for however much membership fee in full at the time of "joining" or have the sales contract balance immediately financed by a separate finance company, actually a subsidiary of the parent scam company. The money the victim parts with willingly, thinking "What's $5,000 here when I'm going to end up saving over $50,000 when this is all done?" He fails to realize during the sting that he's never going to actually get the promised savings because all of savings are expressly disclaimed in the fine print of the contracts and merchandise ordering materials. The very sales contract, which the victim was at first eager to sign, now comes back to bite him with all those adverse terms and conditions. All of this messing around is designed to part him from his money.

Once the scam is explained, it seems so obvious a con that you'd wonder who would fall for it. Yet fall for it people do because they're mesmerized by the wealth that will soon be theirs in the form of all the savings by not paying any markup or middleman costs - and how smart they are by taking advantage of the join now or never opportunity. They also fail to realize there's a hook hanging just out of sight; at first all they see is that others are getting savings and they want to join this cadre, thus they're ill-prepared to mentally shift gears when the con artists turns the tables. Because the premise of "saving tons of money" is wholeheartedly swallowed early on, it's not at a later point questioned when things begin to go wrong with the transaction and the dupes who have been targeted find out the hard way that there is a no refund policy on all the money they have paid in advance of receiving these now questionable "savings."

Beware paying in advance for something for nothing - no written guarantees of promises made should send you running - especially in light of the tactics of "Be like me, I'm a member and I've saved money."

http://edumacation.com/DirectBuy

[Advance-Fee No-Markup-Scam]

Even as you read, this scam, which is nothing more than and a variation of the "Advance Fee Fraud" scheme, is parting yet more of the "something for nothing" crowd from their money.

Here's how it works: the potential victim is baited to call for more information after seeing a tempting infomercial and how on the "inside" someone can get better deals or a telephone "tickler" call is made to a potential victim and an informative letter or brochure is sent afterwards inviting them to an open house so they can see for themselves how much others like them have saved and how much they themselves would save, along with some form of an invitation to join. The letter and subsequent follow-up telephone calls promise rich rewards of savings by buying direct from the manufacturer, at cost, with no Mark Up, No Middleman if only they were "members" of this so called highly esteemed and long time in business organisation. Typically, the pitch at the open house includes mention the so called fact that tens of thousands of other smart and savvy consumers have saved along with a slick selection of what they have saved on -- and you, too, can begin saving as soon as you join this elustrous group by signing a "membership agreement" costing thousands of dollars payable in advance of receiving any benefits - you are told that amount is paltry compared to the savings you will obtain over a 10 year period - and you must sign the contract on a now or never basis. You are even made to feel stupid if you don't sign - only a fool would not take advantage of the savings - spend a little to save a lot sort of thing.

If you're not saying "scam" by now, you should be. Should you agree to participate in this Advance Fee savings scam, something will go wrong. Savings evaporate ... or.. Wrong or defective merchandise will be ordered ... or ... Order delays ... or ... Order mishaps and screw-ups. You will not be allowed to cancel your "membership" and get out of the deal.

If you decide to order merchandise, money from you, in advance of receiving the merchandise -- an insignificant sum, really, in light of the windfall of savings about to land in your lap -- will be required to order merchandise without any written guarantees of actually saving money.. You pay, you wait for the merchandise . . . and all you'll get in return are more excuses about why the order is held up and assurances that everything can be straightened out if you'll just be patient and wait a little while longer or send a bit more to pay for this or that price increase. Once you start making threats, these scammers will threaten to sue you if you don't make good on your end of paying for the membership contract in full.

Beware that the Membership Agreement is in reality nothing more than a legally binding sales contract that may have been glossed over in light of all the savings you are excited about expecting. Carefully look at it - it contains NO GUARANTEES OF SAVINGS - instead there is a "NO ORAL PROMISES" clause: "No oral promises or statements not contained in this Membership Agreement shall bind or obligate the club." It's like a get out of jail free card - they can tell you anything pie in the sky in the open house tour or over the phone to get you to join, but once you sign the sales or Membership Agreement, you agree to the NO ORAL PROMISES clause! So what happens if it turns out not to be what you expected? Ouch. Too late. You're stuck. That NO ORAL PROMISES clause comes back and bites you. Want a refund? Beware that the Membership Agreement states: "Members understand this program is not sold on a trial basis and that no refund of membership fees will be made." So you only partially paid on your contract and think that you're just not going to pay the rest of the contracted amount? -- beware that the Membership Agreement states further: "Members do not have the right to terminate the Membership Agreement without paying the amount remaining for this Membership." And if you think you're going to get a refund because you never found anything cheaper and therefore didn't use the club, think again. There's a clause in the Membership Agreement about this too: "The Membership Agreement is not conditioned on the use of this Membership."

In a nutshell, the con works by blinding the victim with promises of an unimaginable fortune of what others like them have saved, what they could have saved if only they joined earlier, and what they can expect to save by joining now. Once the sucker is excited and sufficiently glittery-eyed over the prospect of what he or she would do with all the money he will save, he is then squeezed for however much membership fee in full at the time of "joining" or have the sales contract balance immediately financed by a separate finance company, actually a subsidiary of the parent scam company. The money the victim parts with willingly, thinking "What's $5,000 here when I'm going to end up saving over $50,000 when this is all done?" He fails to realize during the sting that he's never going to actually get the promised savings because all of savings are expressly disclaimed in the fine print of the contracts and merchandise ordering materials. The very sales contract, which the victim was at first eager to sign, now comes back to bite him with all those adverse terms and conditions. All of this messing around is designed to part him from his money.

Once the scam is explained, it seems so obvious a con that you'd wonder who would fall for it. Yet fall for it people do because they're mesmerized by the wealth that will soon be theirs in the form of all the savings by not paying any markup or middleman costs - and how smart they are by taking advantage of the join now or never opportunity. They also fail to realize there's a hook hanging just out of sight; at first all they see is that others are getting savings and they want to join this cadre, thus they're ill-prepared to mentally shift gears when the con artists turns the tables. Because the premise of "saving tons of money" is wholeheartedly swallowed early on, it's not at a later point questioned when things begin to go wrong with the transaction and the dupes who have been targeted find out the hard way that there is a no refund policy on all the money they have paid in advance of receiving these now questionable "savings."

Beware paying in advance for something for nothing - no written guarantees of promises made should send you running - especially in light of the tactics of "Be like me, I'm a member and I've saved money."

http://edumacation.com/DirectBuy

[M Wainwright]

Dear Mr. Dozier,

What I know personally from seeing your firm's language in the C&D letter, your firm's representation of clients in other cases that appear on the Internet and, in light of the manner (given the many directions that could have been chosen) in which your firm has decided to represent your clients, our firm would never choose to retain your firm's services. In addition, I wanted to let you know that any positive comment I may have read about your firm to counter the negative has not registered in my mind as it is overshadowed by the actuality of your firm's behavior and actual verbiage. Right or wrong, without any need for argument, I would wish to think that you'd learned a lesson my friend, as we are but one of many random companies out there that knows how to use an Internet search engine.

Sincerely

An average President/CEO

[Robert Gant]

The fun part of all these comments has to be marcelo bezerra tavares who proclaims to be a Brazilian but not a lawyer who wants to critic the writing styles of both parties. Mr. 'Brazilian' cannot put together a decent sentence. Now that is funny reading.

Dozier is a dope. He is akin to the Big Bad Wolf of The Three Pigs tale in that he will huff and puff and blow your house down, except he found the house was built out of brick. Whoops, did I just violate a copywrite law by my comparison?

[Get Lost]

Here's a funny parody site of John Dozier and his law firm I found on the internet.

http://cybertriallawyer.110mb.com/

[IG]

Was Dozier right? It looks like it:

http://johndozierjr.typepad.com/dozierinternetlaw/

[Mike Hunt, Esq.]

Dozier, the more you post the more paranoid you appear. We'll see if the copyright protection of C&D letters sticks in appeals. As you probably know, opinions issued by the Appeals and Supreme Court carry more weight then an Idaho District court.

I suggest you tell your client to view the other cases similar to yours that Public Citizen defended. You can view these at the Citizen.org web site. As you can see, Public Citizen's track record of losing is a very short list. The beauty of it is you'll drive more traffic to the web site critical of Direct Buy while costing your client a fortune in legal fees. In the end, you'll make a fool out of yourself and your law firm as you can see a similar outcome at taubmansucks.com. After all is said and done, you and your law firm's focus will be defending people on parking tickets. On the bright side, it couldn't happen to nicer chap like yourself.

[John W Dozier Jr, Esq.]

DOZIER INTERNET LAW WAS RIGHT: COPYRIGHT RIGHTS EXIST IN LAWYER CEASE AND DESIST PER US COURT

US District Court recognizes copyright protection in lawyer cease and desist letters. Commentary, links to blog and links to decision here (www.cybertriallawyer.com)

Ralph Nader founded Public Citizen and used well crafted attack journalism successfully for many legitimate reasons. And now, the Greg Becks of the world think they can become the next Ralph Nader. But, reality is quite a different thing. Mr. Nader researched his positions meticulously, was smart enough to see both sides, inciteful enough to project out where the law is headed, and careful enough not to damage his reputation by undertaking ridiculous attacks. He seemed to understand that, to some extent, attacking speech because you did not agree with it was, to say the least, hypocritical.

At Dozier Internet Law, we are proud of our position as a thought leader and aggressive litigator in protecting the online businesses of the web. We'll keep protecting the reputations and intellectual property of businesses online, and likely continue to have to suffer the slings and arrows from Public Citizen and its constituents. While the hundreds of threatening emails and telephone calls we received as a result of Public Citizen's outragious comments in this matter might intimidate some law firms into submission, we are not intimidated. This tactic won't work with Dozier Internet Law.

Public Citizen needs to do the right thing and tell its 100,000 members and the public that if they follow their advice they risk financial ruin. Ralph Nader would have done this. He insisted, given the existence of a damaging product or service in the marketplace, that a "recall" be implemented. Although Beck, Levy and Public Citizen have known about this Court decision for some time, they allow their erroneous advice to remain without retraction or correction.

I come from the generation that know Ralph Nader. Mr. Nader is highly intelligent. He operated from a foundation of truth. I respected Mr. Nader's opinions. I supported Ralph Nader's right to voice those opinions, even when I disagreed. You, Mr. Beck, are no Ralph Nader.

John W. Dozier, Jr, Esq.
President
Dozier Internet Law
www.cybertriallawyer.com

[Paul Higgins]

I live in the UK and unfamiliar with US law, but assuming some similarity, surely the fact that the letter is now online, therefore in the public domain would automatically prevent registering a copyright? And I must ask, if it is copyright, would showing it to your lawyer be restricted? It seems somebody really should be looking closely into this situation.

[Mark]

Re: Mr Morris, Mr Dozier and hiw whole law firm

If they had two clues, they would be on the floor playing with them.

Sincerely,

Mark, Esq, OBE, OC, Etc, RAM, IMHO

[marcelo bezerra tavares]

Hi Guys, I'm neither a lawyer nor an US citizen (I'm a Brazilian), so i am very doubtful about my English writing skills in a very humble way, but i certain know, at least, how to read a forum and post a comment to it.
for those who respond to "Mr. Tavares" thinking that i was the author of the comment about "writing skills" of lawyers from first or second tiers schools, let us clarify some points.
the author of comment was the user called "a better writer" and not me. in fact we can see the author of comments just BELLOW the comment and not ABOVE the comment.
by the way i did not came from Harvard, but with all respect to this or other first tier institutions, they never can bring to anyone the most precious knowledge which is COMMON SENSE.
sorry by the late answering, i was too busy preparing my application papers to Harvard.

[StarGlazer]

What is required to sue for 'legal abuse'? I'm not a lawyer either, but it seems to me this Dozier has stepped over the line... certainly morally, if not technically.

[Jon]

Copyrighting a letter in this way is interesting.

Apart from the fact that copyrighting anything on the internet is practically difficult, and the mere saying 'this is copyright" is pure temptation for everyone to copy it, it totally ignores the purpose of 'copyright'.

Copyright is there to protect the owner of works / articles, or in particular, the monetary value of those works. For example, I write an essay which is copyright to stop you from making a million bucks - you copy it, then I can sue you for the money I would have made had you not made it instead!

Even then, copyright allows you to publish extracts from my essay sufficiently enough to properly discuss and debate it.

Furthermore, when a letter is sent, it belongs to the addressee once posted. The postal company carry it on behalf of the addressee (if you don't believe me, try getting a letter back after posting), so therefore, one would argue, that if anything, the contents of the letter belong to the addressee so they can not be copyright to the sender.

To me, it would have made more sense to put 'Private & Confidential' on the letter, opening up grounds of 'breach of trust or confidentiality' & such like, but not 'copyright'!

On the subject of slagging companies off, justifiably or not, whatever happened to ***opinions*** let alone free speech???

But then, I'm not a Lawyer.

[Samuel]

Yes, Dozier, I'm inclined to agree that you are only a playground bully. You know you won't get anywhere with this suit, you should just drop it and save face. It's a fact of life: your client doesn't do good business and *gasp* the customers tell the truth! Tell your client to clean up their act and then they won't have to worry about what others say about them online.