Careful, That C&D Letter Might Be Copyrighted

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Here’s a case that’ll likely leave you with an icky feeling. A lawyer for a large company in Idaho copyrighted a cease-and-desist letter, and when an anonymous blogger posted the letter on his blog, the company subpoenaed the blog hosting company for the blogger’s identity in order to pursue copyright infringement claims.

Abuses of the Digital Millennium Copyright Act have been chronicled online since the legislation went into effect. Lawyers often send DMCA takedown notices in an attempt to silence critics by spooking them into removing alleged infringing material. Often the "infringing" material is fair use for criticism. 

Bloggers with far fewer resources than the companies or entities seeking to silence them have used their blogs as their principle weapons, and have posted copies of the takedown notices they receive to highlight perceived further abuses of power.

A new practice is emerging whereby lawyers either just claim a takedown letter is protected under copyright (which many have argued it isn’t) or go to the trouble of actually registering a copyright for the takedown letter. If and when the letter is posted, this opens the door for further litigation.

Eric Goldman at the Technology and Marketing Law Blog chronicles a case involving multi-level marketing/health products company Melaleuca, its CEO Frank VanderSloot, and an Idaho political blogger that goes by the pseudonym Tom Paine.

At the 43rdstateblues blog, Paine posted the details of an unconfirmed rumor saying that VanderSloot had paid off controversial Idaho Senator Larry Craig (which is rather hilarious in itself, considering VanderSloot’s full-page anti-gay advertisements).

But it’s understandable that VanderSloot would want to dispel and remove a rumor if untrue, and it was redacted eventually.

Another blogger, "d2", according to Goldman, posted the cease-and-desist letter sent to 43rdstateblues that alleged defamation and demanded the rumor post be taken down. But before the letter was sent, counsel for Melaleuca registered a copyright for the letter.

Melaleuca then subpoenaed the blog operator 43SB.com, LLC, to identify Tom Paine and d2 in order to proceed with a copyright infringement lawsuit. Despite Goldman’s and 43SB’s belief that the copyright claim is "bogus," the court upheld that the letter was copyrightable.

It’s unclear what will happen next, but Goldman calls Melaleuca’s actions "troubling," as the outcome of the case could have large implications for bloggers in general. He writes, "if demand letters are copyrightable, bloggers will keep those letters off the Internet and away from public scrutiny. As a result, this case threatens to curtail an important tool that bloggers had to fight back against abusive takedown demands."

Careful, That C&D Letter Might Be Copyrighted
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  • Guest

    I appreciate your attention, but you have a few details backwards.

    Vader filed the copyright registration *after* we submitted a motion to quash the subpoena and *long* after I scanned and posted the takedown demand.

    Also, the judge didn’t deem the letter copyrightable. He merely said that case law holds that a prima facie case for copyright exists any time a document is registered. A prima facie case is all that is needed to honor their subpoena under DMCA. The decision about copyright, copyrightability of a takedown and fair use remains up for debate.


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