Sep 2 2008

Unsubstantiated Cease and Desist Letters Under Scrutiny

By Jane • Letters of Opinion • • Tags: , ,

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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.

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