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.
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.
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.
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.
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.
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.
The commenters on Volokh Consipracy have a much higher proportion of informed opinions than the internet as a whole. I often disagree philosphically (they're very libertarian) but it's high-quality discussion.
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.