Buffets are monuments to the tyranny of choice. When presented with a plethora of options, many people just freeze up -- stopping somewhere between the crab claws and the gelato bar. Today I found myself in a similar overwhelmed position as I read Platinum Equity’s cease-and-desist letter to the San Diego Reader. You see, there are just so many shockingly wrong aspects of this attempt to chill speech, it was hard to pick just one to harp on.
Quick recap: Platinum Equity, a buyout firm based in Beverly Hills, recently bought the San Diego Union-Tribune. In 2006, two former employees of Platinum sued the firm for sexual harassment, claiming that the firm “creates and tolerates a persistent, and pervasively sexually charged and hostile environment for women.” This case was eventually dismissed. The San Diego Reader, another San Diego based newspaper, had the audacity to inquire as to the nature of the dismissal – namely, was it the result of a settlement? The Reader presumably did this because it’s a, you know, newspaper, and the mistreatment of women in the workplace is typically considered news (for an example of this strange convention, see this Union- Tribune story).
Platinum took offense to this inquiry and alerted their counsel, Martin Singer, who drafted the longest cease-and-desist letter of all time, warning that if the Reader so much as implied that Platinum had “engaged in wrongdoing as alleged in those lawsuits or otherwise, [the Reader] will be exposed to substantial liability for claims including defamation.” The penultimate paragraph of the letter warned “[y]ou proceed at your peril.” Singer sent this letter with the caveat that the communiqué itself “is a confidential legal communication and is not for publication.” In fact, Singer claimed that”[a]ny publication . . . of any portion of this letter will constitute . . . a violation of the Copyright Act.”
So you see my dilemma. Should I sink my teeth into the juicy claim that the publication of a cease-and-desist letter could be a violation of copyright? Or should I enjoy the delicious irony that one newspaper is threatening to sue another newspaper over the possible gathering and publication of . . . news? Or perhaps I should spend any entire post rehashing the Streisand effect for the benefit of Platinum Equity, Sarah Palin, Tony La Russa, Shaw Printing, and every other entity that has not mastered this simple concept: bringing a defamation lawsuit only increases the amount of attention directed to your flaw.
Because I already sampled the latter choices in my previous posts, I decided to focus on the concept of the mythical “unpublishable cease-and-desist letter.” (Singer’s letter begins "Confidential Legal Notice - Not for Publication or Other Use" and I’ve always been a sucker for small caps.)
Can a party prohibit the publication or dissemination of its threatening salvos? The answer is almost certainly no. There is a nontrivial argument that a C&D is not original enough to qualify for copyright protection, though this argument relies more on policy than legal precedent. More fundamentally, the publication of that letter is likely fair use.
The fair use defense looks to the purpose and character of the use, the nature of the work itself, the amount of the work used, and the effect of the use on the market value of the work. 17 U.S.C. § 107. Without descending into legal complexities which make up the 9 concentric circles of copyright hell (e.g. "Is this use transformative, productive, or complementary?"), we can speak about fair use in terms of societal interest and the interest of the copyright holder.
The Reader was acting in society's interest (and coincidentally its own) when it published Platinum's letter. Hosting a threat-letter-party encourages people to reflect on our laws and the issues at stake. The Ninth Circuit recognized this in Hustler v. Moral Majority, stating that “when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.” The debate surrounding the use of legal coercion to suppress speech concerns us all and participation often calls for concrete examples.
Fair use is even stronger here because publishing the letter won't have a significant impact on the market for Singer's work. The Reader's action has not lessened Singer's share in the market for C&Ds because Internet users aren't about to recycle a 2600+ word letter that's tailored to this specific controversy.
So, if it is almost certain that a court would reject a copyright claim based on C&D, why do companies keep unleashing threats and using these warnings? (You’ll notice that I keep on saying almost. This case is the reason. See also Dozier's comments on the ability to copyright cease-and-desist letters.) I think that these behemoths just don’t understand that the Internet has changed the entire economics of menace. Before the Internet, there was no recourse to a threat letter. I mean, I suppose you could try to get it published in a newspaper (sorry, had to touch on the irony of this whole Platinum debacle), but that was time consuming and unreliable. So threat letters were essentially free, as far as the sender was concerned. But now, thanks to this series of tubes, a threatened party can embarrass the aggressor by publishing the spooky missive (damn, couldn’t resist the Streisand effect either).
So, I guess there are two take-aways from this post:
- If you are sent a cease-and-desist letter, you will likely be safe if you decide to publish it. (Note: none of this is legal advice. Recall that I am a law student [and a coward]. Take no confidence in what I say.)
- Like most buffet goers, I am weak willed and just sneak a little bit of everything on my plate.
(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern. He once ate three meals at the same buffet.)