"The Copyrighted Demand Letter, Redux"

Paul Alan Levy (Public Citizen) has the latest example:

It's been many years since John Dozier and his associates suffered the humiliation (and subjected their clients to the Streisand Effect) that followed from their habit of appending a threat of copyright infringement litigation to their defamation demand letters, but a newly minted "defamation attorney" from Houston named Paul Sternberg seems determined to follow in their path. The story began when one of his clients, a fellow named Christopher J Nanda, proclaimed on social media that his office window put him in a perfect position to aim his well-oiled automatic rifle at Black Lives Matter protesters in Wisconsin. Jana Hall took issue with this post, and used Twitter to call it to the attention of Nanda's employer, which promptly sacked him.

Sternberg then wrote a letter to both Hall and her husband …, warning that he was going to sue both of them, potentially ruining her husband's business, if she did not take down the tweets, "de-index" the tweets (that is, prevent Google from linking to them, part of the defamation services that his web site promises, circumventing what he claims is protection that web sites enjoy under the Freedom of Information Act [yes, that's what Sternberg's site says -EV]), and promise never to speak online about Nanda ever again. When she posted his demand letter on Twitter, both to call him to task for his threats and to crowd-source her quest for advice on how to respond to them, he angrily threatened her by claiming she had infringed his copyright in the letter, demanding that she remove it, as well, from her Twitter feed.

In a letter to Mr. Sternberg I have explained the error of his ways and urged him to retract his copyright claim. Happily, his web site makes clear that I did not have to explain the Streisand Effect to him….

UPDATE[:] Although Mr. Sternberg did not have the good grace to send Hall a letter retracting his copyright claim, he has now rescinded it in an email to me.

Comments

[Dr. Ed]

I don't understand -- why isn't a demand letter a copyrightable document? It's a written document and posting something in its entirety has never been considered "fair use."

If MLK2 could copyright his speeches and his estate own them now, why isn't this copyrightable?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL but I'd guess it is as copyrighted as everything else one writes, right from the git-go. But that only protects against re-using it for yourself as if it were your own, and then only if there is no other way to express it. If every lawyer drew up a copyright warning, I bet they'd be so similar that even the original authors would get them mixed up.

And I bet that fair use does indeed include copying the entire letter for criticism. Copyright doesn't prevent showing it as a court exhibit, or in court.

But IANAL.

[Noscitur a sociis]

It’s a written document and posting something in its entirety has never been considered “fair use.”

Wrong. The amount of the copyrighted material that is duplicated is only one factor in the fair use analysis. And, as noted here, the remaining factors make it so clear that, if this letter even qualifies for copyright protection in the first place, it's still fair use that I agree it's likely that the plaintiff would be sanctioned if he actually made a serious effort to pursue these claims.

[Dilan Esper]

Right. There's a four factor test, and the amount used is only one factor. And the Supreme Court has said the crucial factor is factor (4), whether the use will interfere with the market for the original.

And unfortunately for Mr. Sternberg, there isn't any market for his letters at all. So he is suffering no economic loss whatsoever from the posting of those letters on the Internet.

[Dr. Ed]

Lots of people, ranging from religious cults to the Psychology profession, use copyright to prevent public access to their documents.

[Dilan Esper]

They may try, but if there's a strong public interest in the contents of particular documents and no market for them, the fair use privilege is going to be extremely broad.

Copyright is not droit moral. It isn't about some moral claim to control how one's expression is used. It's an economic right, for a limited amount of time, to have exclusive control over one's creations so that there is an economic incentive to create new works. The fair use privilege ensures that.

[MatthewSlyfield]

Yep and while I am not aware of any cases that held 100% as fair use for text, there are certainly cases that have done so for photographs.

[DJK]

I was also confused about why it wouldn't be copyrightable. SCOTUS has said that only a modicum of creativity is needed for copyright to subsist. The lawyer's choice of how to arrange words clearly demonstrates a modicum of creativity, so the letter should be copyrightable. I'd like to see some case law cited as to why there would be no copyright. I totally agree that posting the letter consists fair use, though.

[Eugene Volokh]

Noscitur and Dilan are right: It's a copyrightable work, but posting it for noncommercial purposes to criticize it (or to seek help in responding to the threats) is fair use.

[DJK]

Eugene, thanks for the direct response! I work in patents and am admittedly hazy on my copyright law but I didn't think I had misremembered such a foundational doctrine.

[Dr. Ed]

But if I post a Moonie doc or Psych Textbook for noncommercial purposes?

[rsteinmetz]

Common tropes don't qualify and most attorney letters I've seen sound and read pretty much like any other attorney's, especially demand letters.

[DJK]

The tropes wouldn't qualify for copyright protection, but the writer's specific choice of the words used to express the tropes certainly would. The letter is definitely copyrightable, though the protection might be very thin and extend only to the specific wording employed by the attorney. However, there is no question that it was copied wholesale and would constitute prima facie copyright infringement but for the fair use. And the fair use analysis turns on the commentary and criticism issues raised by Dilan and others.

[ScottK]

I like this Paul Alan Levy guy. Nice letter.

[swillfredo pareto]

put him in a perfect position to aim his well-oiled automatic rifle

Oh FFS. AR does not stand for automatic rifle.

[AtR]

It's nice to see a lawyer on the right side of justice!

[TwelveInchPianist]

"that his office window put him in a perfect position to aim his well-oiled automatic rifle at Black Lives Matter protesters in Wisconsin."

Really? Maybe I'm missing something, but the link seems to suggest that he was planning to aim his rifle arsonists, not protesters.