Jennifer Aniston’s Cease and Desist Letter

confidential2.jpgEric Goldman has a very interesting post about the cease and desist (C&D) letter that Jennifer Aniston’s attorneys sent to the paparazzi who took her photograph. The letter is posted on The Smoking Gun website. The letter states several times that it is to remain confidential, and it has this language:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization.

Goldman observes:

How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. . . . . I don’t see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.

The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).

But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. . . .

Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn’t enough–to understand the letter and its potential impacts, external observers have to read the precise words used.

Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.

I wholeheartedly agree. There’s more at Eric’s post, which also discusses how Google goes about publicizing the C&D letters it receives.

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7 Responses

  1. Mike says:

    That firm is famous for sending those letters. Here’s another example. I think it’s unethical for a lawyer to call a garden-variety demand letter as a “confidential legal notice.” It makes it sound official, and it’s misleading.

    An ordinary and untrained reader might reasonably think that there is a such a thing in the law as a “confidential legal notice,” and that the letter he received qualifies as one. If it’s not unethical because it’s misleading, then it’s certainly bad behavior.

  2. Greg Lastowka says:

    The Diebold/EFF case seems worth noting here. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (2004). The posted company emails in that case were arguably subject to copyright, but the claim of infringment was ultimately deemed frivolous by the court.

    EFF’s Press Release here:

  3. Bruce says:

    It’s an interesting issue. Theoretically, every letter and e-mail you write is copyrighted, but for e-mails and business correspondence there is probably an implied license allowing the receipient to copy and forward as they see fit. Here, however, the law firm is expressly getting rid of any implied license argument.

    Whatever the outcome for ordinary correspondence, I think it weakens the law firm’s argument that this is a legal communication. Legal correspondence and briefs, like computer programs, are designed primarily to achieve a particular effect, and only secondarily as a means of creative expression. Like computer programs, that does not rule out copyright protection entirely, but much of the program/brief/letter will be excludeable under Section 102(b), merger, or scenes-a-faire. If someone writes a brief that achieves a desired result, and I’m litigating the same issue in the same state, I should be able to borrow heavily from that brief — maybe not to the extent of swapping the names on it, but I should at least be able to make it “substantially similar.” See also Nimmer’s discussion of witness testimony at Sec. 5.12[B] (discussing Lipman v. Massachusetts, 311 F. Supp. 593 (D. Mass. 1970)), which he suggests might be a “public document.” It would pushing it a step further, but a cease and desist letter might be thought to have that status as well.

  4. Greg Lastowka says:

    Bruce — that’s an interesting theory, do you have any case cites on how legal discourse might be “functional” that way other than Nimmer’s discussion? Reminds me of Judith Butler…

    I should have pointed this out earlier, but there are some extended writing on this topic. See this from Ribstein and Kobayashi about copyright in legal complaints:

  5. Joe Liu says:

    Thank goodness they are asserting their copyrights in the cease and desist letters. Just think – without copyright protection, there would be no incentive to write these things, and the public would be deprived of the fruits of their creative efforts. Oh wait …

    Seriously, the copyright claim is laughable. Where is the harm to the market?

  6. Bruce says:

    Greg, the “functional” comment is something I just made up, and I haven’t thought too hard about it. I am not aware of any cases; but it looks like Ribstein and Kobayashi say roughly the same thing in Part III (thanks for the link). To be clear, Nimmer’s discussion concerns only witness testimony, and is limited to the suggestion that it may be a “public document.”

    BTW, what reminds you of Butler?

  7. greglas says:

    You seem to be saying that law is performative, functional speech in the same way that computer code is performative and functional. This reminds me of Butler’s Exciteable Speech or Catherine MacKinnon’s Only Words — both of them want to problematize the line between speech and action.

    Re Ribstein — yes, I think they get it from the analysis in Veeck, which is a fascinating case.