Misuse via Cease & Desist Letters

Efforts by lawyers to assert copyright in their pleadings and briefs is not new, and is typically done not to suppress the contents of documents but to prevent their reproduction by competitors. There are occasional exceptions, usually dealing with expert reports. Most recently, lawyers sending cease and desist letters have taken to asserting copyright to prevent the public disclosure of the enforcement effort itself. One law firm that appears to be doing this is the Dozier Internet Law, P.C. , in Glen Allen, Virginia. Here is a link to a letter they sent to an individual, Mr. Justin E. Leonard of Scottsdale, Arizona on September 21, 2007 on behalf of DirectBuy. DirectBuy was upset at things said about them on three websites, www.infomercialblog.com, www.infomercialratings.com, and infomercialscams.com. These sites allegedly contained defamatory statements about DirectBuy (an issue I offer no opinion about). On behalf of DirectBuy, the Dozier firm stated, "Our client will not stand by and allow this misconduct to continue," and therefore demanded various things, while still claiming on behalf of the law firm, not DirectBuy, that "this law firm does not attempt to restrict legitimate free speech... ." The letter however closed with this: "Please be aware that this letter is copyrighted by out firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further causes of action." I am of course using the letter in part too.

Mr. Leonard decided not to roll over and contacted Public Citizen. Public Citizen describes itself as "a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts." It has a litigation arm, and decided to get involved in the dispute, on October 5th, sending this response, captioned as "How not to write a cease and desist letter." Public Citizen's Paul Levy closed his letter this way in reference to the copyright threat at the end of the Dozier letter:

Such a posting would be fair use. Moreover, inquiry by my colleague Greg Beck produced the interesting information that the copyright in the letter has not been registered. Sadly, according to what you told him, you have been successful in this intimidation because none of your cease and desist letters has ever been posted.

There is always a first time. We are posting the letter on the Public Citizen web site (the letter can be found at http://citizen.org/documents/directbuy.pdf) so the public can access our differences by comparing your contentions with our responses. By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the Internet.

Please make me the second time for what is clearly misuse.