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Unsubstantiated Cease and Desist Letters Under Scrutiny

lolbunny - I iz planning revenge!
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For a blogger, even one with a law degree, a letter with legal threats makes you sweat, particularly the first one. I received my first perceived legal threat from an author over a satirical blog piece I did. The email demanded an apology and retraction, the first steps to a defamation suit. I took the complaint seriously and reviewed all my statements, the original blog post, and contacted a lawyer friend for her opinion. I then responded, forcefully, rebutting the claims and citing the law, and requesting the person to refrain from future contact unless through legal representation.

Since that time, I’ve had numerous legal threats lobbed Dear Authors way and I’ve taken them all seriously which is the way everyone should take a legal threat. Bloggers, however, are not without their resources. For example, there is the anti-SLAPP statutes being enacted around the country. A couple of weeks ago, a federal district judge in Northern California has provided bloggers one more shield.

If you are a regular reader of the blog, you’ll know that Victoria Laurie, an author, took the time to target a blogger who took portions of Laurie’s own blog posts and reprinted them on her site. Laurie recruited a friend of hers who is a lawyer to send the blogger what is commonly known as a “Cease and Desist” letter. A C&D is essentially a legal threat telling the recipient to take certain action or else. The “or else” is some type of legal action.   Laurie herself declared “I absolutely PROMISE you that if you continue in this vein I absolutely will pursue you to the full extent of both my pocketbook and the law.” (from Laurie’s deleted blog).

My feeling, as I blogged about, was that the lawyer, in sending this cease and desist letter, was engaging in actions that weren’t entirely in keeping with her state’s ethical rules. I spoke to Robin about it on the telephone, ranting over what I perceived to be the utter misuse of Cease and Desist letters and that the legal profession wasn’t living up to its own ethical prohibitions by not curtailing these more. There’s always an internal conflict between zealous representation and ethical representation.

The Lenz v. Universal Studios case, though, could help the legal profession police itself. Stephanie Lenz uploaded a video of her toddler dancing to Prince song “Let’s Go Crazy.” Universal Studios sent a C&D to YouTube demanding that the video be taken down for copyright infringement. After all, as the copyright holder, Universal Studios has the right over derivative works including performances. Lenz was infuriated, contacted a lawyer, and wrote to YouTube demanding the video be put back up because she had not violated any copyrights. The EFF got involved and sued Universal Studios for misrepresentation under 17 U.S.C. Sec. 512(f) of the DMCA.

According to Judge Fogel, the Digital Millenium Copyright Act requires the copyright holder (such as Universal Studios or an author like Victoria Laurie) to have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and therefore “the owner must evaluate whether the material makes fair use of the copyright.”

Universal argued that requiring the copyright owner to assess whether the use of the copyrighted material constitutes fair use would reduce the rapidity in which copyrighted materials could be taken down and be difficult to determine whether the material actually does constitute fair use.

The court rejected Universal’s arguments finding that the DMCA requires an initial assessment and that rapidity would not be harmed. “The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous.” Further, as Lenz argued, there is damage down to the public when non infringing or fair use of copyrighted material is wrongfully taken down.

Damages in a misrepresentation action could include attorneys’ fees as well as other items. “Lenz did incur actual damages in reviewing counter-notice procedures, seeking the assistance of an attorney, and responding to the takedown notice.”

Turning to our example case of Laurie v. ChariDee, Laurie had a duty to assess whether ChariDee’s use of Laurie’s copyrighted blog writings constituted fair use. In considering Fair Use, we need to weigh four factors:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work

ChariDee used two paragraphs of material from a 20+ paragraph blog post. The blog post does not limit the potential market for Laurie’s own words. She is free to sell her rants, if she could find a market, to someone else. The purpose of ChariDee’s use of Laurie’s words was to commentary and not of a commercial nature. The copyrighted work was full of opinions and did not have much creative value.

The point of the ruling (and this post) is to point out that for those people who think about sending C&D letters based on the DMCA should engage in a good faith assessment of whether the use is fair because at least in some jurisdictions a baseless C&D letter will be grounds for its own suit.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

42 Comments

  1. Ann Somerville
    Sep 02, 2008 @ 04:11:42

    So was there ever a follow up from Laurie? And if not, can Charidee take some action against her or her lawyer for acting in bad faith? She should be able to recover legal fees necessarily incurred, surely.

    ReplyReply

  2. Jayne
    Sep 02, 2008 @ 04:44:06

    I had thought it was a C&D email, not a letter Charidee received. Is a C&D email even legal?

    ReplyReply

  3. Nathalie Gray
    Sep 02, 2008 @ 05:21:05

    A cease and desist e-mail?! It’s kind of like a paper sword…

    I’m wondering too, is this a legal document that actually counts for something?

    ReplyReply

  4. Shiloh Walker
    Sep 02, 2008 @ 06:33:20

    A cease and desist e-mail?! It's kind of like a paper sword…

    Maybe they thought the keyboard was mightier…? ;) Although I’m curious, too… can an email C&D be considered legal?

    I wish this country wasn’t so lawsuit happy. People who think “I’m going to sue you” should be the end all, be all of arguments, and the pathetic slice of lawyers that encourage it.

    I consider lawyers an honest, ethical group, but the ambulance chasers and the fools that participate in crap like the VL fiasco are the reason so many people love to tell shark jokes.

    And fools like VL are the reason a lot of readers view authors as melodramatic drama queens instead of rational adults.

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  5. Jane
    Sep 02, 2008 @ 07:07:41

    Lots of business is conducted over the internet, such as shopping. The medium of communication doesn’t necessarily render anything invalid. What is the difference between sending a scanned letter via email, an email or a letter via regular mail? The DMCA is about notice and an ISP must act speedily to take down infringing material as soon as possible after receiving notice. If you can prove someone received notice, then I would think that the C&D email would have the same legal effect as a C&D letter sent through regular mail.

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  6. DS
    Sep 02, 2008 @ 08:01:02

    I had read about this opinion on another blog and was thinking about looking it up. The reasoning seems sound. And there is just something delightful about seeing Universal thrown for a fall– I’m sure in other similar cases (and I am certain there were other cases) the person just backed off.

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  7. ilona andrews
    Sep 02, 2008 @ 08:12:28

    When I worked as an AA, standard operating procedure was to send C&D by certified mail, first class mail, and email. Cover all the bases :)

    ReplyReply

  8. Ann Bruce
    Sep 02, 2008 @ 08:15:08

    A cease and desist e-mail?! It's kind of like a paper sword…

    Business contracts that are digitally signed (signed via e-mail) are legally binding, so why not C&D’s?

    ReplyReply

  9. Gwen
    Sep 02, 2008 @ 08:30:46

    Thanks for the analysis Jane! This is fascinating stuff in this electronic and blogged-about age.

    ReplyReply

  10. Keishon
    Sep 02, 2008 @ 08:44:05

    WTF is in that pic? [g] Now I can go read.

    ReplyReply

  11. Nathalie Gray
    Sep 02, 2008 @ 08:52:47

    Business contracts that are digitally signed (signed via e-mail) are legally binding, so why not C&D's?

    Hmm. I’m not a lawyer, obviously, since I’m asking. But I like to think there’s a difference. That contract would’ve been expected, right, something I would’ve waited for from someone I knew. But a C&D e-mail just like that, coming from a stranger claiming to represent some obscure author on the web? I don’t know.

    If I received such an e-mail, I’d probably think it’s spam or something and dump it. But should I get one by mail, on real honest-to-goodness paper, I’d take it seriously. Don’t know why. Maybe I’m just old-fashioned!

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  12. Keishon
    Sep 02, 2008 @ 08:53:09

    Interesting article Jane and thanks for enlightening us. Very much appreciated. You can always contact the attorney general of your state if faced with a lawsuit, couldn’t you? Or no? Especially if you have zero funds to have someone evaluate a C&D if [god forbid] you receive one.

    ReplyReply

  13. Nathalie Gray
    Sep 02, 2008 @ 08:54:24

    Can I just add, that poor little critter looks so cold as he’s planning his revenge.

    ReplyReply

  14. Jane
    Sep 02, 2008 @ 08:55:07

    No, Keishon, the AG of a State represents only claims on behalf of the State. If you had no funds, you could check with your local Legal Aid or the EFF. Many times lawyers will give a free consultation.

    ReplyReply

  15. Keishon
    Sep 02, 2008 @ 09:18:58

    Ok, thanks for clarifying – someone had told me differently. I remember Amex had some service they offered where you paid on a monthly basis – to have a lawyer on standby, unsure of the services but it was limited in scope. Not sure if they have that anymore either.

    ReplyReply

  16. Janine
    Sep 02, 2008 @ 09:22:36

    WTF is in that pic? [g]

    I had the same reaction. What kind of animal is that?

    ReplyReply

  17. Nicole
    Sep 02, 2008 @ 09:28:12

    I had the same reaction. What kind of animal is that?

    I’m pretty sure it’s just a wet rabbit. You know, having a bad hare day?

    ReplyReply

  18. Sparky
    Sep 02, 2008 @ 09:49:16

    I can’t agree more with you on your position on C&D letters. If a lawyer sends a C&D letter to threaten someone when s/he KNOWS that the recipient of that letter has done nothing worthy of being sued (or, to put it another way, if the recipient refuses to comply the lawyer knows s/he wouldn’t DARE try to take it to court for fear a of judge chewing them into little pieces) then they are breaking their ethics. They are misrepresenting the law and bringing the profession into disrepute. It’s inexcusable, a breach of the trust the profession implies and makes all lawyers look bad.

    Lawyers take a lot of flak. We’ve all heard the jokes about “casts no reflection” and if you can’t pay the bill he’ll take o positive – but ultimately if a lawyer says “the law says X” then the person he is talking to has every expectation that the lawyer is right (or at least that the lawyer believes he is right and is competent enough to make that judgement). Lawyers who lie about what the law says violate that basic certainty.

    Oops, that was a long piece of hyperbole, but it’s something I’m kind of obsessive about :)

    As to C&D emails – well, I know my firm uses legal email notifications all the time, though not C&Ds it has to be said. You print a hardcopy for your files – but it’s a perfectly legal form of notification

    ReplyReply

  19. Jayne
    Sep 02, 2008 @ 09:49:36

    That pic makes me want to grab a warm towel and dry the little bunny off. Poor wittle wabbit.

    ReplyReply

  20. Sparky
    Sep 02, 2008 @ 09:51:49

    Nicole

    I'm pretty sure it's just a wet rabbit. You know, having a bad hare day?

    Argh! I’m sending a C&D over that pun!

    ReplyReply

  21. Kimberly Van Meter
    Sep 02, 2008 @ 11:52:42

    Wow. I read this post and sat stunned for a moment. It seems to me that the author being discussed takes herself WAY too seriously. I mean to drag in the lawyers over a blog post?? C’mon, that’s just ridiculous. And frankly, having never read this author, this kind of behavior makes me less inclined to pick up her books. The whole thing just leaves a bad taste in my mouth. It sounds as if Jayne handled herself and the situation quite admirably, with dignity and professional grace. IMO.

    ReplyReply

  22. Robin
    Sep 02, 2008 @ 12:00:24

    I wish this country wasn't so lawsuit happy.

    One of the biggest problems is that 99% of suits settle, which means that they are NOT going to trial, which means that no new law is being made on many issues where new law *needs* to be made. So while many people think that too many suits are being filed, many legal scholars believe that too few cases are being arbitrated in such a way as to update the law in numerous areas. Which, then, of course, contributes to the number of suits filed.

    I remember Amex had some service they offered where you paid on a monthly basis – to have a lawyer on standby, unsure of the services but it was limited in scope. Not sure if they have that anymore either.

    Limited legal insurance can be available as a benefit in certain circumstances. I have legal insurance through my job, and I can imagine that some of the higher end credit cards do, too. But I don’t know how readily people know about those services and/or utilize them.

    As for the AG, since corporate entities have to register with the AG as part of the process of incorporation, consumers can make complaints against businesses with the AG’s office. So while the AG doesn’t act in the capacity of personal consumer attorney, they will sometimes bring an action *on behalf of the state*.

    ReplyReply

  23. KMont
    Sep 02, 2008 @ 12:12:24

    Hot damn I love this blog.

    ReplyReply

  24. Hortense Powdermaker
    Sep 02, 2008 @ 13:31:48

    Not an attorney (that would be you, Jane) but the problem I see with anyone sending a C&D letter over a blog post is that the Second Circuit of the U.S. Court of Appeals has ruled that unless you have actually filed for a copyright with the U.S. Copyright office, the federal courts have no jurisdiction over a lawsuit. From the decision:

    We have held, albeit outside the class action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from 27 unregistered copyrights…The precise issue on appeal is whether the District Court had jurisdiction to certify a class consisting of claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. We hold that it did not.

    …Defendants noted that section 16 411(a) of the Copyright Act provides that “no 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.”

    This arose because a class of writers had sued over copyright infringement, but the majority of plaintiffs in the class hadn’t registered their copyrights with the U.S. Copyright office.

    So maybe I am misinterpreting this, but it seems that unless you copyright all of your blog posts (which would be expensive) you can’t sue. Can you confirm?

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  25. Jane
    Sep 02, 2008 @ 13:35:54

    My understanding is that you don’t have standing to sue for money damages, although you could sue for injunctive relief (stop doing something, or ordered to do something).

    You have time to register something to be copyrighted, but the money damages don’t start until the copyright is registered.

    I don’t know if that makes sense or not.

    “Standing” is a legal term of art to describe who has the right to sue and when. For example, I couldn’t sue Laurie on behalf of ChariDee. I don’t have the “standing” because I am not the “real party in interest.” In the copyright sense, the courts have said that you can’t bring a claim before them for damages until the work is registered with the US Copyright Office.

    ReplyReply

  26. Hortense Powdermaker
    Sep 02, 2008 @ 13:50:10

    This is so interesting – thanks for the clarification. If I understand you correctly, what constitutes “fair use” of material that hasn’t actually been registered with the copyright office would still be a consideration, because the author of the blog post could go ahead and copyright the misused portions of her rant after the “fair use” has taken place. But then there’s the whole sticky issue of damages – as in, what damages?

    Anyway, it does seem as though sending a C&D letter for material that hasn’t been registered and which was “used fairly” could wind up with the sender having to reimburse the fair user’s attorney fees.

    ReplyReply

  27. Jane
    Sep 02, 2008 @ 13:57:04

    Right. Since the C&D calls for action, it is within keeping of my understanding as to who has standing to sue. But I also agree with your last paragraph in that sending a C&D that causes the recipient to incur legal fees and what not could expose the sender for damages under the DMCA (per the interpretation of the Lenz ruling).

    ReplyReply

  28. MCHalliday
    Sep 02, 2008 @ 16:12:18

    I've had numerous legal threats lobbed Dear Authors way and I've taken them all seriously which is the way everyone should take a legal threat.

    I’m appalled this has happened to Dear Author, as it is one of the best blogs for book discussion, reviews and news. There are no post deletions due to differing opinions.

    It’s frightening to me when a person who doesn’t like what has been written, can apply legal action. For it seems, copyright was not at issue for the Laurie C&D, nor was Jane’s satirical post on an author deflamatory.

    Part of the US constitution refers to a right of free speech, does it not? Does a constitional right differ from US law, other than admirable exceptions regarding the promotion of hatred for race or creed?

    ReplyReply

  29. ChariDee
    Sep 02, 2008 @ 17:05:13

    I know now that I did not breach Copyright law with my blog post. The key word here is now, because when I received that letter I was a mess. I didn’t sleep for nearly 3 days, couldn’t eat, and was just all out scared for quite some time. If I could take any action against Laurie, I would think it would be for libel and defamation, but I don’t know.

    I love blog posts like this, because I learn so much. The fact of the matter is, that while I would love to do something about the whole thing, I don’t know what. Thank you Jane, for posts like this, because they do help us bloggers learn so much.

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  30. Estara
    Sep 02, 2008 @ 17:57:49

    I can’t add much to this post, but there’s an excellent youtube video using Disney films to explain what fair use is and isn’t and what copyright is, etc. Read the FBI warning, too!

    Made by people from the Stanford Center for Internet and Society’s Fair Use Project
    http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale

    ReplyReply

  31. Shiloh Walker
    Sep 02, 2008 @ 18:41:18

    One of the biggest problems is that 99% of suits settle, which means that they are NOT going to trial, which means that no new law is being made on many issues where new law *needs* to be made. So while many people think that too many suits are being filed, many legal scholars believe that too few cases are being arbitrated in such a way as to update the law in numerous areas. Which, then, of course, contributes to the number of suits filed.

    Huh. Well, yeah, that makes sense, but I hadn’t considered that particular part of the problem. I’m curious, if so many of these lawsuits went to trial and the ‘suing for damages’ issues weren’t found in favor of whoever is doing the suing, would as many people be likely to sue? I’d think not, because then, would they be responsible for the legal bills?

    Of course, this might not make sense at all… my brain is fried from homework. Not mine-the kids…shudder…the homework…mumbles Shiloh as she stumbles off.

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  32. Sparky
    Sep 02, 2008 @ 20:29:20

    Shiloh

    I'm curious, if so many of these lawsuits went to trial and the 'suing for damages' issues weren't found in favor of whoever is doing the suing, would as many people be likely to sue? I'd think not, because then, would they be responsible for the legal bills?

    Not only that, but it’s a matter of precedence. If someone comes to a lawyer and whines “I got extremely drunk and decided it would be a great idea to cut my fingernails with a chainsaw – there should have been a warning label! I want to sue!” or something similarly ridiculous then the ideal thing a lawyer wants is to pull out a nice biiiig book (or click on a nice flatscreen for the less old school) and say “no, because X case was decided saying that makers or pointy objects aren’t responsible for inebriated people flailing around with them.” Case closed. The lawyer can say outright “you will lose this case.”

    IF, however, the chainsaw manufacturer settles out of court (as just about everyone and their insurance company does) the lawyer CAN’T say “no you won’t get a penny” because people have in the past. Every time a company settles the legal system has no chance to set down sensible guidelines on lawsuits. As Robin said, if they’d fight the cases, we’d get some precedents and we’d all know where we stand, as opposed to at the moment when we know you can sue for just about any crazy thing and still get a settlement.

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  33. Jane
    Sep 02, 2008 @ 20:33:39

    As someone who did contingency fee cases for 11 years, I can tell you that no lawyer makes money taking on cases with bad facts. It’s too risky. It’s bad business. This whole “sue happy” nation is a total fallacy, imo. We hear about alot of specious cases but many of those get thrown out in early stages. The majority of court time is spent adjudicating family law and criminal cases. Civil cases, tort cases, account for less than 10% of the docket in many jurisdictions.

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  34. Lindsey
    Sep 02, 2008 @ 23:33:38

    I’m just an occasional reader who follows links here, but I love discussions of Fair Use and proper defense of it–I think it’s deeply important to our free society.

    I agree with you that the supposed plague of litigation is mostly a smoke screen–certainly there are ridiculous cases and some of them even settle for ridiculous (for the claim) damages, but 99% of cases are not spurious on immediate perusal, and so-called “tort reformers” mostly act to limit the access of ordinary people with genuine grievances, such as Texas’s infamous limits that have virtually destroyed the worker’s compensation system.

    I wish there were a good way to halt narcissistic blowhards and bully companies from abusing C&Ds and scaring non-lawyer folk with such claims.

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  35. Jo Goodman
    Sep 03, 2008 @ 14:32:24

    Y’all have the most interesting discussions. So much food for thought. Thanks.

    ReplyReply

  36. Marta
    Sep 03, 2008 @ 23:31:37

    OK, let me get this straight. Someone reads a blog. The blog is not a source of income. Someone reading the blog wants to make a point regarding another blogger’s comment, so he copies and pastes that part of the blog and includes it in his own comment. Everyone else who reads the new comment, can tell that part of it is a quote from a previous blogger.

    Now, someone else comes along, copies and pastes part or all of a blog that again, is not copyrighted, or used as a source of income. This copied part of the blog is mentioned on another website perhaps, or in an e-mail to make a point. Everyone who reads this other website or e-mail knows it is only a quote, and that the blogger in question is not the author.

    However, the owner of the website gets her panties in a wad over it. Does this mean that freedom of speech in this form is now dead? What does this mean for the student who might use a blog in an essay?

    And hey, if some of my comments appeared on that owner’s website, and they get copied somewhere else, doesn’t it mean that I’m the one who should get her panties in a wad instead of the blog owner? And what if I merely wish to quote myself and copy and paste my own comments to another website or e-mail?

    It’s getting so no one can discuss anything anymore without someone throwing a fit!

    Oh, and that picture is of a wet rabbit. Pauvre lappin….

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  37. Amy Wolff Sorter
    Sep 04, 2008 @ 08:59:07

    I have a few problems with the C&D letter lobbied at ChariDee. Jane knows my problems with them, but I’ll outline them here.

    First. The format/method of delivery. Yes, it’s certainly legal to send a notice of this type via e-mail. But most attorneys will back it up with a hard copy (snail mail or fax). This is to ensure the recipient will get it. To rely strictly on electronic mail to get a demand to a person is simply ridiculous. To my knowledge, ChariDee never received a hard copy or fax of the order.

    Second. There is usually a specific deadline for the “call to action.” In other words, “immediately” typically isn’t good enough because “immediacy” has all kinds of leeway (who is to say that three months isn’t “immediate,” given the context?). Most attorneys will specify a date, and then take action if that date isn’t met. Why? Because if something like this ever does go to trial, it indicates that the defendant had enough time to take down the offending material, but failed to do so by the date mentioned.

    Third. A P.O. address on the e-mail sent to ChariDee. Most attorneys I know put phone numbers and street addresses on their communicateions to speed resolution to a potential legal conflict. This e-mail had neither, which REALLY raised a red flag in my mind. What reputable attorney solicits comments from an accused with a P.O. address and no phone number?

    Fourth. There is no case. Jane pointed out the “Fair Use” guidelines already and ChariDee is certainly within her rights to do what she did on her blog.

    Fifth. “Dear Author” never received an C&D from Laurie’s “attorney.” Why target the smaller Novelreads and ignore “Dear Author?” That just doesn’t make sense.

    IMO, this “legal” document was nothing more than an attempt by Ms. Laurie to intimidate and bully ChariDee into backing down. I give ChariDee full marks for not giving into that and for standing her ground.

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  38. Peter Durward Harris
    Sep 05, 2008 @ 11:26:45

    Did you see this cease and desist notice against the Republican Party over the use of a song? I don’t know if it fits within the law, but it shows that these things aren’t limited to the world of books.

    ReplyReply

  39. Jane
    Sep 05, 2008 @ 11:30:20

    The playing of songs in a public venue without payment of royalties would be a violation of copyright, in my opinion.

    ReplyReply

  40. Lian A. Noreen
    Sep 25, 2008 @ 19:01:17

    In my mind there is one question that should be considered and that is “what would happen if all copyright laws were repealed?”

    Copyright is fairly new and based on greed. Personally I don’t think it has a place in civilization. The world would be a better place without greed.

    Lian

    ReplyReply

  41. Ambulance-Service.net
    Mar 24, 2009 @ 22:48:50

    I really liked your blog!

    ReplyReply

  42. Cherokee
    May 26, 2009 @ 14:21:02

    Good stuff, I “Stumbled” you. My DIGG account got messed up but I like Stumbling better anyway.

    ReplyReply

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