For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Monday, 28 January 2008

Lawyer asserts copyright in cease and desist letter

The IPKat has learnt from Slashdot that a lawyer in the US has managed to win a copyright case against a website which posted a cease and desist letter that he sent.

The case is somewhat of an oddity, as rather than being a staightforward infringement case, it is a case under the DMCA in which an ISP was asked to identify an alleged infringer, and so the would-be copyright owning lawyer only had to show prima facie evidence of infringement. The court mentioned, but declined to rule on, whether the letter has the modicum of creativity that is required to qualify it for protection under copyright law. Instead it found that the fact that the lawyer had a certificate of copyright registration was prima facie evidence of eligibility for copyright protection. The entire letter was published online, so there was no problem with showing that an original part of the work was published.

The IPKat notes that this could deprive the 'little guys' of the ability to engage in self-help, and he wonders if it's a bit of an own-goal for a lawyer to show that he's ashamed of what he has written by using copyright law to limit its dissemination. He notes though that in the UK we have actions for unjustified threats of infringement which may protect the 'little guys'.

Extracts from the case here.

3 comments:

Anonymous said...

I think you may have overstated the holding. I understand from here http://randazza.wordpress.com/2008/01/27/copyright-vs-free-speech-in-cease-and-desist-letters/ and links therein that the issue was only whether there was a sufficient basis for allowing a subpoena to issue, the purpose of the subpoena to identify a third party who had made unfavorable comments. Hardly ratification of the copyrightability of the letter or that the infringement was not "excused" by doctrines such as fair use.

Anonymous said...

A minor point - I don't think there are any threats provisions under UK Copyright law!

Anonymous said...

There is an English counterpart: Musical Fidelity Ltd v. Vickers [2003] FSR 898 (CA), where the uploading of a lawyer's letter was held to be copyright infringement, with some interesting twists on title and some grumbles by two of the appeal judges - copyright rustici.

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