Does copyright law bar the posting of unflattering cease and desist letters?

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?

Thanks to Ron Riley, who seems to be particularly offended by Dozier, for calling Dozier’s latest to my attention.

Since this was posted, other discussions of Dozier's claims have appeared here, here, here, here, and here.

Comments

[childhood obesity statistics]

The ruling reveals something else – disturbing in its own way, but not what Dozier claims.

[Find Lawyer]

This is a wonderful opinion. The things mentioned are unanimous and needs to be appreciated by everyone.
Amy Cooper

[amexsux]

"...Since you seem to have a relationship with Mr. Riley, I suggest you take a look at one of his many attack websites...www.amexsux.com, and pay particular attention to his many crazy claims. You are known by the company you keep, Mr. Levy."

For the record, Mr. Riley does not own or operate amexsux.com.

[Darlene]

"But Dozier seems not to have read the actual decision carefully."

No one else seems to have either. It wasn't a decision by a district court judge but a rrecommendation of a ruling on a pre-trial motion by a magistrate. It does not determine the issue but merely states that there is a prima facia argument for copyrightability. A prima facia merely means that is is worth looking into further. But the whole thing has no precedential value whatsoever and doesn't even have to be followed by the judge assigned to the case.

[Georg Felis]

Any threatening correspondence sent to my place of blogging can be reliably counted upon to be posted immediatly, if it is a crayoned letter or written on vellum with golden lettering, and damm the consequences. Cyberbullying should be quashed with the light of day. If you write me a letter claiming I'm polluting with my CO2 emissions, or claiming I secretly love clams, or threatening me with criminal prosecution and jail time, those are all threats in my opinion, and not a valid reason for suing me for posting them.

Now if I were to cut-and-paste from your cease-and-desist order into one of my own, I would certainly expect to have my pants sued off, and for good reason, because I would be appropriating your own work as my own.

[Marc J. Randazza]

Dozier,

Now we see where the aggression comes from, don't we?

"Even your liberal, free speech lawyer friends responded that someone needed to explain to you that registration is not required."

This particular libertarian can tell you that I haven't been able to find any support for your claim that Public Citizen said you needed a registration to have a copyright -- but only that you need a registration in order to sue. If you are such an intellectual property heavy weight, you know that you need registration before the infringement in order to really have any remedies aside from an injunction.

Your hissy fit really declines here:

"You are all for free speech until you don't agree with the speech, and then you go on the attack.

Its called the marketplace of ideas, Dozier. You put your ideas out there and Public Citizen attacked them. Nobody tried to stop you from expressing your point of view -- but there is no theory of free speech that says "criticizing someone else's speech is a violation of their free speech rights."

Regarding your "credentials," I'm not impressed. I'm BV rated (the highest rating available for someone with my years of practice). I got that by listing people who liked me, Martindale called them and made sure they liked me, and I got the rating. Whoop dee doo. Yeah, I'm proud of it, but I don't think that it makes me superior to anyone without the rating.

Superlawyers and Legal Elite? Anyone willing to put in the time vote-swapping or politicking can get that. Yawn.

[Not John Dozier]

Mr. Dozier:

Just wanted to let you know, that contrary to your User Agreement, I viewed the source code on your User Agreement/Privacy Policy page. I was unaware that copyright laws prevent a person from viewing copyrighted material.

[beans]

Mr. Dozier:

You state that Mr. Levy claimed one "had to have a copyright registration in order to assert copyright rights." He never said that. Mr. Levy noted that the C&D letter was not registered. Moreover, Mr. Beck, who made the original posting on this blog, said the following: "The letter is not registered with the copyright office, and until it is, DirectBuy's law firm can't sue to enforce it." Mr. Beck also said in response to the same or a similar comment that you are now making: "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."

So, Mr. Dozier, I have a question: Do you know what you are talking about? Should a Super Lawyer know better?

Beans

[Beans]

Mr. Dozier:

Wow! You are Superlawyer! Gee whiz. Are you a SuperDuper Lawyer as well?

Beans

[say what!]

Law firm violates copy right by using defendants

Law firm violates copy right by using defendants copyright works…
If the law firm owns the copy right to the Cease and desist letter… and uses the plaintiff intellectual property… such as trade name etc, In the laws firms work aka the “Cease-And-Desist” letter... this letter is in violation of copy right of the defendant.

[John W Dozier Jr, Esq.]

First, you claimed you had to have a copyright registration in order to assert copyright rights. Even your liberal, free speech lawyer friends responded that someone needed to explain to you that registration is not required.

Then you claimed that calling a business a "scam" cannot be defamation, and we provided you with a list of court cases that not only found it defamatory but the most egregious form of defamation.

Then, you criticized our firm for claiming we could pull down copyright infringing sites without notice, and I had to point you to the US federal law that specifically allows this practice.

Now, you are trying to justify your advice to the online world that they could post cease and desist letters with impunity and without any risk. Gaining an understanding of the law of the Internet is an ongoing process, and I would have hoped you would have at least progressed to the point where you stop making ridiculous claims and arguments.

Anyone can read the briefs and see for themselves whether First Amendment and Free Speech arguments were asserted by the Defendants. You seem to have a problem with admitting mistakes. When you keep throwing out bad advice into the marketplace, it is akin to a business having a defective product. Nader and Public Citizen are famous for insisting upon recalls for defective services and products. You need to issue a recall on your advice.

Since you seem to have a relationship with Mr. Riley, I suggest you take a look at one of his many attack websites...www.amexsux.com, and pay particular attention to his many crazy claims. You are known by the company you keep, Mr. Levy.

You are all for free speech until you don't agree with the speech, and then you go on the attack. As for your personal attacks, anyone can visit our website and see my credentials...top peer review ratings from lawyers and judges across the board in Internet and Intellectual Property law. Why don't you tell us if you are AV rated at Martindale? A Superlawyer? Legal Elite in Virginia (where you practice)? All of these are peer selections for the highest regarded lawyers. Where are you, Mr. Levy?

[patrick]

I think its a pretty good ruling. One of the functions of the DMCA is to assist web site owners in discovering the route back to compliance with copyright law and this practice of displaying these DMCA notifications is tantamount to public assault upon the copyright owners rights and reputation. Website owners need to stop the flagrant abuse of the trust we grant to them to responsibly operate an internet node, and the public needs a pretty big stick to profer a beatdown on rogue websites, and the DMCA is this stick. Suck it up, nobody likes a thief.