

The Ethics of Publishing Cease-and-Desist Letters - cwan
http://volokh.com/2011/01/25/the-ethics-of-publishing-cease-and-desist-letters/

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raganwald
So the hypothetical situation is this: You get a letter from party X asking
you to do Y or suffer consequence Z.

It seems to me that if the threat of consequence Z is really sound, X will not
mind if you publish the letter on the Internet or take out billboards to share
it. Whereas if they want it kept secret, they must have something to hide,
such as the weakness of their position.

Mind you, INAL, so I am merely musing aloud for entertainment purposes only.

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jdp23
I agree with Volokh and most of the commenters that it's ethical to publish a
cease-and-desist letter if you get one.

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revolvingcur
I feel this comment to be "right" (i.e., I agree with it), and I've published
a received DMCA take-down notice, but I'm curious if there's any precedent for
one getting in trouble (having their post regarded as another instance of
copyright infringement, etc.) for doing that.

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_delirium
There are a lot instances of people _claiming_ that republishing a legal
threat they sent constitutes copyright infringement, but I can't find any
instances of anyone successfully winning a copyright-infringement suit over
it. There's a fairly strong fair-use argument, at least.

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timwiseman
I am not a lawyer, but my understanding is that generally a legal threat
letter is not covered by copyright at all. Copyright covers virtually all
forms of creative expression, but most letters and certainly most cease and
desist letters (which often follow a standard template) are not creative
expressions by themselves.

I would also agree, again reiterating that I am not an expert, that even if
they were covered under copyright the fair use argument _could_ be enormously
strong here, depending on the way and reason it was published. Given that
there is no market for cease and desist letters the 2nd and 4th factor in the
test under 17 U.S.C. 107 leans towards a fair use finding, and if its
publication is for commentary or education (even better if noncommercial) then
the 1st factor would also lean towards fair use. Only the the 3rd would lean
against fair use since you would have to publish all or substantially all of
the letter to be effective. But at least courts have found that use of an
entire work can be fair use under the right contexts.

So, it certainly seems to me as a layman that there is no copyright concern in
publishing and publicizing your average cease-and-desist letter.

[Edit to fix spelling]

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cafard
Well, but the letter was not directed toward Volokh, for one thing. For
another, this is not the sort of RFC that the Internet is particularly good
at. The proportion of informed opinion to opinion on the matter is unlikely to
be large.

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ZachPruckowski
Why does it matter who the letter was directed to? The recipient of the letter
was the one who published it, and Volokh quoted from it (or reprinted it) for
commentary purposes. It's not like he snatched it out of the ether en-route or
something.

