Awhile back, I had a posting about misuse in the manner in which a cease and desist letter was being used (link here). This turned out to be a web-wide controversy, which I won’t re-enter; recently though the author of the letter put out a press release touting a recent decision by a magistrate judge on the copyrightability of such letters. (see here). This press release has been challenged by Public Citizen and others (see here). Among other issues was the posture of the case, a Rule 12(b)(6) motion, and not, as my blog was about, misuse.
A February 1 opinion from the Western District of Louisiana also concerns letters, this time collections letters. Robison v. Cardiology Associates, L.L.C., 2008 WL 294488 (W.D.La. Feb. 1, 2008), Docket No. 05-1581. Here are relevant excerpts:
To disprove originality, Cardiology Associates argues that Robison copied from earlier letters in the public domain, that she added nothing of any significance to the collection letters already existing in the public domain, and that her letters do not contain any ideas, but rather are tools used to attempt to collect debts.FN5 FN5. This final argument is easily dispelled. Robison's letters clearly and concisely convey numerous ideas: an assertion that the recipient owes money to the sender; a request for payment; a non-threatening and cooperative approach to the debtor; and a threat of action adverse to the debtor if payment is not forthcoming. … Further, defense expert Dr. Perlman identified fifteen separate ideas in Robison's letters. … Robison is not claiming a copyright in these ideas, but rather in the particular way that she expressed the ideas in her letters-that is, the actual language that she used, which is subject to copyright. … Again, Robison's letters are contained in Record Document 65, Exhibit A. From her deposition testimony, it is clear that Robison had read other collection letters. But with her letters, she sought to create collection letters that achieved the goal of collecting the account, but were also sympathetic, unoffending, cooperative, and non-threatening. … According to Robison, she was “trying to give the patients options without making them feel threatened.” … In the letters, Robison expressed that the account is now due, we realize that you (the patient) have hardships, we realize that real life happens, and we are willing to work with you to settle the account. … Robison sought to achieve these goals with her terminology and phraseology. … Phrases from her letters include: • We regret having to take these measures and have tried working with you in order to clear this account. • We can at this time still make financial arrangements with you to clear the account and cancell [sic] legal procedures. • It is my intent to work with you and to set up a payment schedule that is reasonable and financially accepted to you. I do not want to cause any undo [sic] financial stress however this account needs to be taken care of. • Your account has been presented to me in order to try to establish [a] payment plan suitable to you and your financial obligations in order to clear the account. …. Here, the particular way that Robison chose to express her ideas, no matter if those ideas were in the public domain, is original to her. It required some degree of creativity on her part to select the language, terminology, and phraseology that she used to express those ideas. This expression is what plaintiff sought to protect via copyright. Even Dr. Perlman, the defense expert, stated that Robison's letters “contained ... some degree of creativity in the phraseology of the content of [the] letters” and that the author of such letters exhibited “at least a minimal degree of creativity” in creating the letters. Record Document 65, Exhibit D at 89-90.
Letters have long been protected under U.S. law, beginning with Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass.1841) (Story, J., riding circuit), which concerned President George Washington’s letters. An even earlier English decision involved letters of Alexander Pope and Jonathan Swift, Pope v. Curll, 2 Atkins 342 (1741). More contemporary disputes involved novelist Harold Norse, Norse v. Heny Holt & Co., 991 F.2d 563 (9th Cir. 1993); author Richard Wright, Wright v. Warner Books, 953 f.2d 731 (2d Cir. 1991); Scientologist founder L. Ron Hubbard, New Era Publications, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989); and, J.D. Salinger, Salinger v. Randon House, 811 F.2d 90 (2d Cir. 1987). Like many works, the original creative efforts in letters can vary wildly, from cease and desist letters, to the Richard Strauss-Hugo Hofmannstahl correspondence, which seems to have been written from the beginning with an eye to publication, see here.
That a letter, or any work is protectible as a whole, says little about the scope of that protexted, fair use, or misuse.
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7 comments:
I have to disagree. I think it does say a few things.
First, it is at least some evidence that courts are willing to find an infringement of a nasty-gram by posting it. Indeed, it also puts to rest the idea that the letter, in and of itself, could never be copyrighted; including your own. See your response to Confused (also me) in the earlier post, where you replied that the republication of the letter might be non-infringing (or fair use). Given today's post, it's not clear how the letter could per se be non-infringing (provided the letter meets the copyright requirements).
Second, it does also say something about fair use to the extent that fair use is predicated on an infringement in the first place. If there were no infringement, fair use would never come up.
Finally, I'm still in the camp that thinks threatening suit over infringement or even asserting broadly rights that would be clearly within fair use simply cannot be misuse. The owner of a copyright is in no better position, ipso facto, to determine fair use/free speech issues than the putative infringer. Most broadcasters do it all the time "Any rebroadcast, retransmission or any other use of this telecast without the express written permission of the NFL is strictly prohibited." (not the use of "any" and "other use" and "strictly prohibited").
So while we can all agree this was in poor form, really bad lawyering, and horrible advice to the client, I'm not sure that I buy into the misuse argument here since the writer of the letter did nothing but state it may have additional causes of action, which they do (and which doesn't require that they acknowledge that there are good defenses).
Dear YFTL, methinks respectfully that a decision not to dismiss a complaint on the pleadings because a work could be protectible says nothing about whether that work has been infringed or made use or whether any particular effort to assert copyright in it might be fair use; instead, it merely means as a procedural matter that there are no set of facts under which plaintiff cannot prevail in the work being ultimately found copyrightable. Its like saying a patient on life support isn't dead.
True.
A motion to dismiss is a motion dismiss and not a judgments on the merits. But, as I said, it is some evidence that courts are willing to entertain the copyrightability of a nasty-gram. If it were per se not copyrightable (or potentially if there were no set of facts that avoided fair use), then a motion to dismiss on this point should have been allowed.
I have to take issue with YFTL's comments.
YFTL said s/he is in the camp where "threatening suit over infringement or even asserting broadly rights that would be clearly within fair use simply cannot be misuse. The owner of a copyright is in no better position, ipso facto, to determine fair use/free speech issues than the putative infringer."
That can't be a workable test for misuse. Simply because the plaintiff and defendant are equally capable of assessing whether there is misuse?
By that standard, there would be no misuse in the most egregious cases, since the egregiousness would be equally evident to all.
We need a strong misuse doctrine to rein in our overzealous colleagues. Too many members of the IP bar - whether they write nastygrams or the NFL's embarrassingly broad warnings - currently fail exercise any independent judgment when they advise clients to take outrageous positions. And yet at section events the same lawyers gripe about the crisis of credibility that the copyright system experiences.
We have met the enemy, and he is us.
I am a big supporter of misuse, which is more important now than ever.
Not to interrupt your discussion, but I am disappointed by the state of our IP regime that letters are copyrightable at all.
The (original) purpose of copyright being to encourage creativity and cultural works, I cannot think of any situation where copyright is necessary to the creation of a letter.
I understand that the way the law and tests are currently written places letters in protected space, but it is simply ridiculous to believe that letters are viewed as requiring protection to incent their creation.
Procedural niceties aside, cases like this make me step back and ask how the purpose of copyright law is forwarded by the court's decision. Does even considering granting this lawyer exclusive rights to his C&D letter for the next 95 years (assuming that it was a wfh) serve to advance the useful arts and sciences for the general betterment of society? Does it encourage people to write new and better C&D letters? Does it do anything except deprive the recipient of the letter the opportunity to expose the lawyer and his client as bullies?
And as a practical matter, in many cases the denial of a dismissal motion ends the case, as a smaller defendant lacks the resources to litigate the case through discovery, another round of motions, and possibly a trial. This lack of resources is often what drives the posting of the C&D letter in the first place. To get the facts out and embarrass the bully.
Like what Brandeis said about sunlight.
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