The Volokh Conspiracy - Copyright Law and Cease-and-Desist Letters:

Five readers e-mailed me about the court decision saying that cease-and-desist letters are protected by copyright. Does this mean that sites that get such letters -- usually saying "your post violates my client's [libel / privacy / copyright / etc.] rights, so take it down immediately or else" -- are violating copyright law when they post the letters (usually in the context of criticizing the letters)?

Probably not, though it's not obvious. The magistrate judge's report, which was adopted by the district court, is here, and a careful read makes things clearer. But first, let's go over two basic copyright law principles (which I necessarily oversimplify):

1. Copyright law presumptively protects pretty much any written (or otherwise recorded) work, whether or not the work is commercially valuable, highly creative, or decorated with a copyright notice. That includes this post, nearly any letter, and nearly any e-mail, except those that are very short or that almost entirely consist of copies of someone else's work.

2. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a "fair use" of the work.

The court decision in this case simply reaffirmed item 1, and thus isn't terribly noteworthy. And it only had occasion to consider item 1 because it did not decide that posting a cease-and-desist letter is copyright infringement (which would have required considering the fair use defense). Rather, the court was only asked to decide whether the plantiff could use a subpoena (under 17 U.S.C. § 512(h)) to discover the identity of the poster. The court concluded that for this, the potential plaintiff only had to show that copyright law presumptively protected his work (which it does); the fair use inquiry would then take place when the merits of the case are litigated, at trial or on a pretrial motion.

One can argue that this was mistaken, that anonymous speakers should have more protection against litigation that seems likely to be groundless, and that a subpoena shouldn't issue if there's reason to think that an affirmative defense (such as fair use) should prevail; I take no position on this question. But the important thing is that the court held that the "copyright law protects a lawyer demand letter posted online by the recipient" (to quote the press release of the lawyer for the potential plaintiff) only in the sense that copyright law does presumptively cover such letters; as an interpretation of existing law, that's quite uncontroversial. The court did not hold that the letter was protected by copyright on the sense that a lawsuit over the posting of such a letter is likely to succeed.

What then about question 2, which wasn't decided in this case but might be litigated in the future? This is unfortunately a tough question, because "fair use" requires the application of a notoriously mushy balancing test. Here's a quick run-through of the four fair use factors:

1a. The purpose of the use -- criticism of the original, which cuts in favor of fair use; the more detailed the criticism, the better for the user.

1b. The purpose of the use -- if the site makes some money (e.g., through advertising), then this cuts in some measure against fair use. But it doesn't cut that much against the fair use when the use is critical, since criticism even in commercially distributed works (such as newspapers or books) is generally a favored use.

2a. The nature of the copied work -- primarily not creative (the way a work of fiction might be creative), which cuts in favor of fair use.

2b. The nature of the copied work -- unpublished by the author, which cuts against fair use.

3. The amount of the work taken -- the entire work, which may cut against fair use, but the court may conclude that the critical nature of the posting requires copying the entire work (so that the reader can evaluate the criticism based on all the facts), in which case this factor may be neutral.

4. The effect on the market for the work -- cuts in favor of fair use, since there is generally no market as such for cease-and-desist letters, and it's unlikely that there'd be a licensing market for the letters (since few people would license the use of the letter to a critic). Any harm to the copyright owner stems from the critical nature of the posting, and not from the poster's competing with the author in the nastygram market.

If it weren't for the unpublished nature of the letter, the Supreme Court's Campbell v. Acuff-Rose decision, on which I rely in my quick analysis above, would make this an almost open-and-shut fair use case. The unpublished nature of the work undermines that in some measure (see, e.g., Harper & Row v. Nation Enterprises); but I still think the copier's fair use case is quite strong.

By the way, I couldn't find the allegedly infringing post containing the cease-and-desist letter. If you can find it and send it to me, I'd love to see it, and post it if I think it merits criticism.

	[Eugene Volokh, January 28, 2008 at 1:04pm] Trackbacks Copyright Law and Cease-and-Desist Letters: Five readers e-mailed me about the court decision saying that cease-and-desist letters are protected by copyright. Does this mean that sites that get such letters -- usually saying "your post violates my client's [libel / privacy / copyright / etc.] rights, so take it down immediately or else" -- are violating copyright law when they post the letters (usually in the context of criticizing the letters)? Probably not, though it's not obvious. The magistrate judge's report, which was adopted by the district court, is here, and a careful read makes things clearer. But first, let's go over two basic copyright law principles (which I necessarily oversimplify): 1. Copyright law presumptively protects pretty much any written (or otherwise recorded) work, whether or not the work is commercially valuable, highly creative, or decorated with a copyright notice. That includes this post, nearly any letter, and nearly any e-mail, except those that are very short or that almost entirely consist of copies of someone else's work. 2. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a "fair use" of the work. The court decision in this case simply reaffirmed item 1, and thus isn't terribly noteworthy. And it only had occasion to consider item 1 because it did not decide that posting a cease-and-desist letter is copyright infringement (which would have required considering the fair use defense). Rather, the court was only asked to decide whether the plantiff could use a subpoena (under 17 U.S.C. § 512(h)) to discover the identity of the poster. The court concluded that for this, the potential plaintiff only had to show that copyright law presumptively protected his work (which it does); the fair use inquiry would then take place when the merits of the case are litigated, at trial or on a pretrial motion. One can argue that this was mistaken, that anonymous speakers should have more protection against litigation that seems likely to be groundless, and that a subpoena shouldn't issue if there's reason to think that an affirmative defense (such as fair use) should prevail; I take no position on this question. But the important thing is that the court held that the "copyright law protects a lawyer demand letter posted online by the recipient" (to quote the press release of the lawyer for the potential plaintiff) only in the sense that copyright law does presumptively cover such letters; as an interpretation of existing law, that's quite uncontroversial. The court did not hold that the letter was protected by copyright on the sense that a lawsuit over the posting of such a letter is likely to succeed. What then about question 2, which wasn't decided in this case but might be litigated in the future? This is unfortunately a tough question, because "fair use" requires the application of a notoriously mushy balancing test. Here's a quick run-through of the four fair use factors: 1a. The purpose of the use -- criticism of the original, which cuts in favor of fair use; the more detailed the criticism, the better for the user. 1b. The purpose of the use -- if the site makes some money (e.g., through advertising), then this cuts in some measure against fair use. But it doesn't cut that much against the fair use when the use is critical, since criticism even in commercially distributed works (such as newspapers or books) is generally a favored use. 2a. The nature of the copied work -- primarily not creative (the way a work of fiction might be creative), which cuts in favor of fair use. 2b. The nature of the copied work -- unpublished by the author, which cuts against fair use. 3. The amount of the work taken -- the entire work, which may cut against fair use, but the court may conclude that the critical nature of the posting requires copying the entire work (so that the reader can evaluate the criticism based on all the facts), in which case this factor may be neutral. 4. The effect on the market for the work -- cuts in favor of fair use, since there is generally no market as such for cease-and-desist letters, and it's unlikely that there'd be a licensing market for the letters (since few people would license the use of the letter to a critic). Any harm to the copyright owner stems from the critical nature of the posting, and not from the poster's competing with the author in the nastygram market. If it weren't for the unpublished nature of the letter, the Supreme Court's Campbell v. Acuff-Rose decision, on which I rely in my quick analysis above, would make this an almost open-and-shut fair use case. The unpublished nature of the work undermines that in some measure (see, e.g., Harper & Row v. Nation Enterprises); but I still think the copier's fair use case is quite strong. By the way, I couldn't find the allegedly infringing post containing the cease-and-desist letter. If you can find it and send it to me, I'd love to see it, and post it if I think it merits criticism.