Comments on: Keeping C&D Letters Confidential

By: Evan Brown

Evan Brown — Sat, 10 Dec 2005 00:08:04 +0000

It seems to me that a plaintiff in an infringement action over a cease and desist letter would be in an interesting catch-22 because of the requirement that a work be registered before such an action can be maintained. If the sender’s ultimate goal is keeping the contents of the letter from reaching public view, then I don’t see how threatening infringement litigation would advance this interest much, when one could retrieve a copy of the deposit from the Library of Congress.

By: Boris Umansky

Boris Umansky — Fri, 09 Dec 2005 17:17:15 +0000

Nice comment Evan. Perhaps the goal is to keep the C&D letter confidential if possible. However, if it reaches the general public then I guess the plaintiff has nothing to lose by filing the copyright application along

with the deposit. In fact, if Aniston’s counsel is serious about this, they should file the copyright application a.s.a.p. in order to get statutory damages per the 3-month exception.

Otherwise, it would be difficult to prove actual damages and profits. Regardless, if we are talking pure copyright law and forget about the

sender’s ultimate goals, I think the copying and subsequent distribution of the letter was an infringement. The question then becomes whether any affirmative defenses apply.

By: greglas

greglas — Thu, 08 Dec 2005 15:53:32 +0000

I don’t want to get into the fair use defense/right debate– I just thought it was relevant re the strength of fair use rights in short memos and such, and to show that relying on prima facie infringement in case with strong fair use arguments could have a significant downside. I could also add the Barbie case, Mattel v. Walking Mountain Prods., 2004 U.S. Dist. LEXIS 12469 (C.D. Cal), where attorney’s fees were awarded because the court found claims of copyright infringement “objectively unreasonable” in light of the strength of the defendant’s fair use arguments.

By: Eric Goldman

Eric Goldman — Thu, 08 Dec 2005 15:14:59 +0000

Good points, Mike (although I’m not an expert in equitable servitudes in chattel!).

Greg, you raise a fair point, although I wouldn’t hold that case out as a model of clarity or rigor. We know that corporate emails can be copyrighted, and the copyright is infringed by copying or distribution. Once we find a prima facie case of copyright infringement, the defendants have the burden to find and prove a defense. The fact that the OPG court decided to cut some analytical corners doesn’t offer a lot of future predictive value. Eric.

By: Mike Madison

Mike Madison — Thu, 08 Dec 2005 14:38:35 +0000

Eric,

I agree with you in principle, but I think the case isn’t so complicated. As to the contents of the letter, the fair use defense is pretty compelling. It seems to me that three of the four factors strongly favor the putative defendant. (Purpose = combination of litigation defense and criticism; nature = published and factual; market = non-existent and not harmed.) And common sense suggests a “you can’t have it both ways” defense that should obviate the need for burdening Title 17 with another exception. As to the physical letter itself, the “no dissemination” legend strikes me as a presumptively void equitable servitude on a chattel — even if the legend survives a preemption analysis that favors the result under copyright law.

Mike

By: greglas

greglas — Thu, 08 Dec 2005 14:05:22 +0000

The Diebold/EFF case seems worth noting here. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (2004). The posted company emails in that case were arguably subject to copyright, but the claim of infringment was ultimately deemed frivolous by the court.

EFF’s Press Release here:

http://www.eff.org/effector/17/39.php#III

By: Eric Goldman

Eric Goldman — Thu, 08 Dec 2005 13:16:50 +0000

David, thanks for the kind words. As for Aniston, I believe she was fully topless in a scene in the movie the Good Girl. However, I don’t think this changes the legal analysis; she still has the right to get publicly naked at the time and place of her choosing. I was actually trying to make a point that was more practical and less legal–even if she has legally enforceable rights, she still should know better. It’s the price of extreme fame, and there’s not much she can do about that at this point. Eric.

By: David

David — Thu, 08 Dec 2005 12:11:32 +0000

I was wondering what your analysis on this topic would be. As to Aniston, can she have it both ways? Celebrities rely on favorable (and even unfavorable or sensational) press to increase their cachet and appeal to fans. Aniston poses topless for GQ magazine on her terms of course (no nipples, but she’s still topless). If she’s outside topless does she really have any expectation of privacy given the existence of powerful telephoto lenses? She’s a celebrity, and needs to have her picture taken to remain a celebrity.

Her “litigation counsel” are the reigning monarchs of the SUYA (smoke up your a**) demand letter. The claim of privilege seems incongruous to its purpose. Here’s an amusing colloquy: “I thought I demanded that you not publish the Photographs.” “You did, but I couldn’t tell my editor or publisher without breaching the confidential nature of your letter or violating the Copyright Act.”

As usual, your blog has the most current and incisive remarks on the IP issues of the day.