4 ms·

I feel this comment to be "right" (i.e., I agree with it), and I've published a received DMCA take-down notice, but I'm curious if there's any precedent for one

I feel this comment to be "right" (i.e., I agree with it), and I've published a received DMCA take-down notice, but I'm curious if there's any precedent for one getting in trouble (having their post regarded as another instance of copyright infringement, etc.) for doing that.

_delirium 16y ago
There are a lot instances of people claiming that republishing a legal threat they sent constitutes copyright infringement, but I can't find any instances of anyone successfully winning a copyright-infringement suit over it. There's a fairly strong fair-use argument, at least.
- timwiseman 16y ago
  I am not a lawyer, but my understanding is that generally a legal threat letter is not covered by copyright at all. Copyright covers virtually all forms of creative expression, but most letters and certainly most cease and desist letters (which often follow a standard template) are not creative expressions by themselves. I would also agree, again reiterating that I am not an expert, that even if they were covered under copyright the fair use argument could be enormously strong here, depending on the way and reason it was published. Given that there is no market for cease and desist letters the 2nd and 4th factor in the test under 17 U.S.C. 107 leans towards a fair use finding, and if its publication is for commentary or education (even better if noncommercial) then the 1st factor would also lean towards fair use. Only the the 3rd would lean against fair use since you would have to publish all or substantially all of the letter to be effective. But at least courts have found that use of an entire work can be fair use under the right contexts. So, it certainly seems to me as a layman that there is no copyright concern in publishing and publicizing your average cease-and-desist letter. [Edit to fix spelling]
jdp23 16y ago
Great question. IANAL, so don't know. Maybe try asking it on Volokh's blog?

_delirium 16y ago

There are a lot instances of people claiming that republishing a legal threat they sent constitutes copyright infringement, but I can't find any instances of anyone successfully winning a copyright-infringement suit over it. There's a fairly strong fair-use argument, at least.

timwiseman 16y ago
I am not a lawyer, but my understanding is that generally a legal threat letter is not covered by copyright at all. Copyright covers virtually all forms of creative expression, but most letters and certainly most cease and desist letters (which often follow a standard template) are not creative expressions by themselves. I would also agree, again reiterating that I am not an expert, that even if they were covered under copyright the fair use argument could be enormously strong here, depending on the way and reason it was published. Given that there is no market for cease and desist letters the 2nd and 4th factor in the test under 17 U.S.C. 107 leans towards a fair use finding, and if its publication is for commentary or education (even better if noncommercial) then the 1st factor would also lean towards fair use. Only the the 3rd would lean against fair use since you would have to publish all or substantially all of the letter to be effective. But at least courts have found that use of an entire work can be fair use under the right contexts. So, it certainly seems to me as a layman that there is no copyright concern in publishing and publicizing your average cease-and-desist letter. [Edit to fix spelling]

jdp23 16y ago

Great question. IANAL, so don't know. Maybe try asking it on Volokh's blog?