Some get it. Some don't. And some simply don't want to, or can't. I guess that is a fair assessment of the comments about our recent Press Release on the US District Court holding that copyright rights can arise in a lawyer cease and desist letter. As we reported, the Court confirmed the issuance of a subpoena aimed at identifying the poster, and found on a prima facie basis that copyright rights existed in the demand letter. Considering the fact that just months before Public Citizen had attacked our firm for asserting such ownership rights, and created a firestorm of comments attacking the very concept of a cease and desist letter being subject to copyright protection, it seemed appropriate to comment on the decision. It still does. The Press Release is accurate, but some of the blogosphere took the release, added words and associated meanings to the non-existent words, and then explained why what I had not said was incorrect. Others simply attacked the judge for erroneous logic and purported errors of law.
Okay, so here we go again. Let me explain the decision in plain terms. The Court found that a lawyer or client can have copyright protection in a Cease and Desist. First Amendment and Fair Use defenses were raised by the defendant, and despite such defenses the Court approved the subpoena. Some will argue he never considered those defenses, some will argue he did consider them and rejected them as not persuasive, and some will argue that it does not make any difference since such defenses are case specific and fact sensitive to each situation.
The impact of this decision is that the first requirement for establishing a copyright infringement claim against a party posting a lawyer cease and desist is supported. Many free speech commentators attacked this belief previously. Of course, those commentators are some of the same ones who claimed you had to have a registered copyright to assert copyright rights, and when they learned that was wrong then they fell back to the position this US District Court has now rejected. So, they now fall even farther back to the "fair use" defense. Get any idea in which direction this is going? Not much left after that to fall back on, frankly.
Some commentators have praised this decision. Others have attacked it. Others have attacked our interpretation of it, focusing on the "fair use" argument. I really get a bit of a chuckle out of the liberal "free speech" types who have never spent a day in their life in a business setting, never attended a board meeting, never had to make payroll for employees, and cannot tell you the difference between an income statement and a balance sheet. They couldn't see things from the eyes of businesses no matter what the situation. They can come up with all kinds of arguments and purported authority for the proposition that if you receive a cease and demand letter you can post it online without risk. They tell the blogosphere that it can do something that could lead to an award against them for $150,000 in statutory damages plus much more in attorney fees; do something that could lead to financial ruin for the gullible netizen and his family for the remainder of their lives. What they do not tell you is that asserting a fair use defense is going to be fact and case sensitive; in some matters you may succeed, in some matters you may not succeed, and that the Courts are still dealing with many of these issues for the first time.
Do the free speech groups really believe in free speech? No. Just speech they agree with. Free speech is a noble concept in their minds, but their minds are clouded by a bias and prejudice against businesses. Consider the irony of FREE SPEECH GROUPS PROTECTING TACTICS USED TO SILENCE CRITICISM. That is what their "fair use" defense does. Let's walk through this for a moment.
Your business is attacked viciously online with damaging lies. If your business lawyer criticizes the blogger, and demands a retraction, you know that there is a real possibility this blogger could publish your letter and create a "mobosphere" attack on your business that would far outweigh the damage to date. Your business is inhibited from voicing your criticism because of the fear of reprisal, and the primary fuel for this reprisal is the threat of publication of your criticism. Free speech groups actually encourage their constituents to post these demand letters, providing further high profile attention to the issue and participating in the "mobosphere" attack. Why are the letters published? To discourage businesses from voicing their criticism of the blogger criticizing the company. Since when did free speech protections not apply to businesses?
And so, from free speech comes a claim of "fair use". Is it fair use to publish a lawyer demand letter, even when the recipient is free to comment on the letter and issues surrounding it, and can likely even publish insubstantial parts of it? No, it is not. The "fair use" argument is a red herring, repeated so often that those who argue its applicability actually believe it. Let's not ignore the reason for the publication. It is not to inform the public. That can be done through comment and criticism. The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement.
The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public's right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better "financial settlement", which is often a nice way of saying that "if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you'll have to suffer the consequences ". That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it, and I suspect they greatly appreciate the generous donations coming in. How important are donations? Reportedly important enough for Public Citizen to "fire" Ralph Nader when donations dropped after his presidential bid. Many suggest it has been slipping into mediocrity and irrelevance ever since, and Public Citizen is scrambling to keep the contributions coming in.
The equities weigh in favor of not recognizing "fair use" as a defense to this copyright infringement claim. The applicability of the First Amendment isn't limited to members of Public Citizen, the ACLU, or the Electronic Frontier Foundation. The most important aspect of free speech this issue implicates is the chilling effect visited upon businesses from the threat of a mobosphere attack. The lawlessness of the web is a big enough problem without having public interest groups pushing a self serving agenda that protects the scofflaws of the web.
Coming Up Soon: We're working on a piece that lays out the organization and dynamics at play in a "mobosphere" attack. You won't be surprised, unfortunately, to find out who is providing the legal support, on many different fronts, for these attacks, and we'll get into how the payoffs are solicited, who gets paid first, and how the bounty is shared among the participants. Fair Use? You be the judge.