C&D Copyright?

[SlinkyToy]

What is the name of your state (only U.S. law)? WY

Signed up specifically to ask this question.

I blog. A lot of other bloggers that I personally know, as well as myself, have been blogging about a particular company that has (had, as the company is now failed) questionable marketing and sign up practices. The owner/group of the failed company is now going after bloggers, demanding they remove posts that name the individual and the company.

I fully expect to get a C&D. In talking with other bloggers that I personally know, the C&D they have received from the attorneys has a disclaimer and states in the actual text of the notice that they can not speak about, write about, publish or post a transcript of the notice.

This seems a bit overbearing, and smacks of a terror campaign.

Question: If I receive something via email or USPS mail that I have not asked for, would that disclaimer still apply? I'm still trying to wrap my head around an attorney copyrighting a C&D and demanding that you not say anything about it.

Thanks for any thoughts.

 

[FlyingRon]

The letter was copyrighted as soon as he set it down in tangible form. He didn't need to "do" anything. The copyright of correspondence remains with the author. Copyright isn't something that falls under the "unordered merchandise" line. If they send it you can't make copies. Now if you were going to recycle the text and use it as your own C&D it might be actionable, but posting it on the blog so you can comment on it would appear to be fair use. While fair use won't prevent a lawsuit (or a DMCA takedown request) you would appear to have reasonable defenses against both.

Further, copyright doesn't keep things "secret." If someone sends you correspondence, they can't enjoin you (short of some previous contractual agreement) from talking about it. However, I'm wondering if you're just tripping over the scare notice that lawyers often wrap around their correspondence to cover letters intercepted or misdirected to others than the intended recipient. It often goes like this:

Unless otherwise indicated or obvious from the nature of this transmittal, the information contained
in this telecopier message is attorney privileged and confidential information intended for the use of the
individuals or entities named above. If the reader of this message is not the intended recipient, or the employee
or agent responsible to deliver it to the intended recipient, then you are hereby notified that you may not
disseminate, distribute, or copy this communication.​

 

[SlinkyToy]

The letter was copyrighted as soon as he set it down in tangible form. He didn't need to "do" anything. The copyright of correspondence remains with the author. Copyright isn't something that falls under the "unordered merchandise" line. If they send it you can't make copies. Now if you were going to recycle the text and use it as your own C&D it might be actionable, but posting it on the blog so you can comment on it would appear to be fair use. While fair use won't prevent a lawsuit (or a DMCA takedown request) you would appear to have reasonable defenses against both.

Further, copyright doesn't keep things "secret." If someone sends you correspondence, they can't enjoin you (short of some previous contractual agreement) from talking about it. However, I'm wondering if you're just tripping over the scare notice that lawyers often wrap around their correspondence to cover letters intercepted or misdirected to others than the intended recipient. It often goes like this:

Unless otherwise indicated or obvious from the nature of this transmittal, the information contained
in this telecopier message is attorney privileged and confidential information intended for the use of the
individuals or entities named above. If the reader of this message is not the intended recipient, or the employee
or agent responsible to deliver it to the intended recipient, then you are hereby notified that you may not
disseminate, distribute, or copy this communication.​

Appreciate the fact that you took the time to respond. I found your comments helpful and informative.

I would like to be very clear - I don'[t believe I am "tripping" over the scare notice. As I stated, I have spoken to other blog owners who have gotten the notice. They have read the notice to me via telephone, and the email disclaimer that anyone who uses email probably has seen at one time or another is a separate paragraph at the end of the email and below the closing. The paragraph that states the C&D can not be discussed, copied, posted or discussed is the paragraph before the closing.

It is my opinion that what bloggers are seeing is a law firm who is engaging in SLAPP tactics.

Again, thanks for the feedback.

 

[Mass_Shyster]

The L in SLAPP refers to a lawsuit, which a C&D letter falls short of.

HOWEVER:

The model rules of professional conduct for Wyoming prohibit a lawyer from making a false statement of fact or law to third parties.

You may want to have all the people who have received these letters to send a copy to the bar association.

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1. Truthfulness in statements to others. In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;

 

[SlinkyToy]

The L in SLAPP refers to a lawsuit, which a C&D letter falls short of.

HOWEVER:

The model rules of professional conduct for Wyoming prohibit a lawyer from making a false statement of fact or law to third parties.

You may want to have all the people who have received these letters to send a copy to the bar association.

Thank you for your response.

Yes, I understand the L. The C&D is the first step in the campaign, in my opinion. I personally know of one blog/forum who has been zapped with a lawsuit, and one news program that has been zapped with a lawsuit. In addition, I personally know of three bloggers who were C & D'ed, and as I said, I fully expect to get one as well.

I don't know how much bearing this has on anything, but the C & D's are all coming out of California by the same law firm. One C & D made it all the way to England, one to Minnesota and one to New York, and based on what I have seen on several public web sites it is my opinion that those sites also got zapped. The bloggers are all scattered around the country, they are not all in WY. I just happen to be in WY.

The individual responsible for this campaign has publicly stated on their blog that they are doing this - I will provide anyone who has an interest with the link and the background if they wish.

Thanks for your response, I appreciate it.

 

[Mass_Shyster]

California has a similar rule:

B&PC � 6128 provides that "every attorney is guilty of a misdemeanor who . . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." Taken together, B&PC � 6068(d) and B&PC � 6128 require California lawyers to be truthful in all statements, whether to the court, opposing parties, clients, or third parties.

 

[SlinkyToy]

California has a similar rule:

Thanks Stevef, I was looking for that. Appreciate the heads up.

 

[Some Random Guy]

There are many web sites which showcase the C&D letters that shady lawyers have sent them, including ones with threating - do not copy or disseminate notices. They are quite a hilarious read.

As for the legality of posting these super secret C&D's, see this summary of the issues:

Copyright vs. Free Speech in Cease and Desist Letters The Legal Satyricon

Bottom line - it is arguably fair use to display the letter to the public in order to comment on it. Also, there is nothing in copyright law that would prevent you from discussing the threatening contents of an unsolicited letter.

 

[SlinkyToy]

There are many web sites which showcase the C&D letters that shady lawyers have sent them, including ones with threating - do not copy or disseminate notices. They are quite a hilarious read.

As for the legality of posting these super secret C&D's, see this summary of the issues:

Copyright vs. Free Speech in Cease and Desist Letters The Legal Satyricon

Bottom line - it is arguably fair use to display the letter to the public in order to comment on it. Also, there is nothing in copyright law that would prevent you from discussing the threatening contents of an unsolicited letter.

Random Guy, thank you for pointing out the Copyright vs. Free Speech link. I appreciate that very much. I'll be re-reading that many times to completely digest the information.

I'd like to thank everyone who has taken the time to respond to me. Everyone has been very helpful and the information is great.