Zeroday 01100100011010010

I’m always amused at how certain attorneys will wave the sword of copyright on behalf of their client. In a post from CL&P Blog a story is unraveled where a scam busting site has set its sights on a company called Direct Buy, Inc. I haven’t looked into the case of Direct Buy nor plan to. However the last paragraph of the C&D (pdf) sent by Mr Donald E. Morris, Esq. of Dozier Internet Law is extremely amusing. His letter states:

“Please be aware that this letter is copyrighted by our firm, and you are not authorized to republish it in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.”

While the FBI letters may be able to enforce silence on inquiries or demands I don’t think that Cease and Desist letters hold quite the same sway. To quote Justice Ginsberg in his Eldred V. Ashcroft opinion, “the fair use defense allows the public to use not only the facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances”.

Those circumstances were defined in his opinion as “criticism, comment, news reporting, teaching, scholarship or research”. If the CL&P blog were attempting to resell the PDF as a boilerplate C&D to others who are hoping to squelch bad publicity I might not believe that their republication falls within the contours laid out by Ginsberg. Their republication of the letter within their blog entry appears to fit very neatly into the categories of criticism and comment. The republication is also used as a needed reference point to their response (pdf).

Dozier oddly has responded by putting their claims on their website and posting a direct response to CL&P. A quick look at the Dozier website shows a link to Cembrit Blunn Ltd & Anor v. Apex Roofing Services LLP & Anor. Dozier purports that this case shows “a court finding that protects the copyright of an attorney letter”. While this may seem interesting at first blush a more detailed look will disappoint. First the finding is in the England and Wales High Court. Second the issue of the letter was determined to be the republication outside of the Dansk group of companies of an internal communication containing confidential data.

“In my judgment the Letter was clearly a private internal communication written by Mr Jorgensen to Mr Fisher and Mr Bailey of Cembrit UK. It contained an expression of Dansk’s views about Apex, the reasons for the problems with the slates and the tactical approach which Mr Jorgensen thought should be adopted and it recorded his concern that litigation should be avoided, particularly if the claimants had a bad case. I accept the submission advanced by the claimants that it was plainly not intended for circulation outside the Dansk group of companies.”

The Cease and Desist letter was not some internal document sent between Dozier and Direct CD, Inc. It was an external document sent to those who were running the scam busting websites. All the facts of the C&D were known to the public so neither facet of the case they present are relevant to their claim.

note: The pdfs are hosted at citizen.org and I am linking directly to them. If those of you at citizen.org wish me to stop linking directly to you please contact me and I will stop.