Back in October, we wrote about a law firm that was claiming a copyright on the cease-and-desist letters it sent out, and insisting that it was a violation to repost them. It’s long been believed that cease-and-desist letters that have no new creative expression and are merely boilerplates are likely not covered by copyright. On top of that, preventing someone from copying a cease-and-desist letter or posting it on their own website seems like a pretty severe First Amendment violation. The group Public Citizen hit back against this law firm’s claims, but surprisingly, a judge has now agreed that you can copyright cease-and-desist letters (thanks to Eric Goldman for emailing over the link).
Hard to know what to make of this, exactly. On the one hand, why not allow copyright on such letter? On the other hand are strong fair-use considerations such that even if someone owns the copyright on such a letter, posting it may still be fine. (Or does one now need to quote from it to qualify?) Public-policy considerations are a major component of copyright and fair use (despite how the law sometimes appears to operate), and this should be one such case. It’ll be interesting to see where this goes from here.
See my previous post on this: Copyright Law and Cease-and-Desist Letters.