Copyright Talk

I love creative lawyers, those who come up with new ways to reach their client’s goals without simply running to court and fighting. I also love someone who takes down a bully. So this little legal skirmish was wonderfully satisfying to me.

DirectBuy, a company that advertises below retail prices on home products, set out to maintain a squeaky clean image. So they took it badly when a former customer posted an unflattering review of them on several internet sites. The proceeded to have their lawyers send scary, threatening letters to the poster. The poster turned to a non-profit consmer rights groups, Public Citizen for help. And Public Citizen wrote an absolutely marvelous response to DirectBuy, which they posted, along with DirectBuy’s original letter, on their website. Don’t worry about any legal language in these letters - the message comes through loud and clear and is great reading.

Now, why do I mention any of this on the copyright blog? Because the DirectBuy lawyers got very creative in their letter. The letter is what is known to lawyers as the “cease and desist.” That is, a common first volley when a legal wrong is being committed is to notify the wrong-doer, and ask them to immediately stop whatever they are doing that may be legally out of line. Lawyers frequently use this because if the wrongdoer does in fact stop, the client’s problem is often solved without having to spend naymore money on legal fees.

But for some companies, public image is a concern and the sending of a cease and desist can backfire if the recipient makes the letter public and it looks like the “big” guy (a larger company) is “picking” on the “little guy.” In fact, that’s about what happened to the RIAA with their scary notices to college students who were allegedly illegally downloading music. Even though many of the students were actually acting illegally, the RIAA’s approach looked heavy handed and unfair to a lot of observers.

So to get around this potential problem, the DirectBuy lawyers came up with a strategy. The last paragraph of their letter specifically notes that the entire letter is protected by copyright, and that the recipient is not authorized to reproduce it. And furthermore, said the lawyers, if he does reproduce the letter, they might go ahead and sue him for that, too. The whole thing is absurd enough to wind up on a TV show.