Brendan of I Hate Linux emailed in this disturbing story: Dozier Internet Law got a judge to agree one can copyright a cease-and-desist letter…
… or, maybe not: According to Public Citizen:
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 â€“ 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 Dozierâ€™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.
I will try to read the PDF of the original decision, and come to my own conclusion.
Dozier, J.W., Jr. (2005). Nastrygrams: Don’t let a “legal letter” ruin your day. Practical Ecommerce, page 21, November 2005.
An important question to ask about the DirectBuy threat letter (written by attorney Donald Morris of Dozier Internet Law) is this: is it serious. Is DirectBuy perhaps pulling our leg? Is Dozier Internet Law misuing cease-and-desist letters to have a chuckle?
Here to answer the question: John Dozier, President of Dozier Internet Law, P.C. John gives several criteria to help determine whether that or not you should “ignore the notice”:
- First, take a took at who wrote the letter
Conclusion: the DirectBuy threat letter is written by a law firm that does not emphasize American law. As most readers of this blog are Americans, Dozier’s letters are quite possibly irrelevent.
- Second, review the content of the demand letter in detail
Does it have attachments and details showing significant effort invested in composing the letter and evaluating the merits of the claim being asserted?
Conclusion: No. Dozier Internet Law uses a standard template to generate cease-and-desist letters.
- Third, who is complaining about your conduct
Be particularly careful in dealing with any communications from competitors because this seems to be the most likely source of aggressive litigation
Conclusion, DirectBuy is suing a consumer information site, and not a competitor.
- Fourth, if you have not made much money from the alleged misconduct, it is less likely to become a real issue than if you have been making a lot of money.
If the use of such intellectual property was highly profitable, beware and be prepared because you are more likely to get sued.
The individual DirectBuy is suing a blogger who operates on a shoe-string, a “highly profitable” operation is unlikely.
Grand Conclusion: According to John’s “general observations and not [his] legal advice,” don’t “cancel that tee time.”