Copyright Law and Cease-and-Desist Letters

The Volokh Conspiracy has a follow-​​up to the story about copy­right­ing cease & desist let­ters:

The court … in this case … did not decide that post­ing a cease-​​and-​​desist let­ter is copy­right infringe­ment (which would have required con­sid­er­ing the fair use defense). Rather, the court was only asked to decide whether the plain­tiff could use a sub­poena (under 17 U.S.C. § 512(h)) to dis­cover the iden­tity of the poster. The court con­cluded that for this, the poten­tial plain­tiff only had to show that copy­right law pre­sump­tively pro­tected his work (which it does); the fair use inquiry would then take place when the mer­its of the case are lit­i­gated, at trial or on a pre­trial motion.

If it weren’t for the unpub­lished nature of the let­ter, the Supreme Court’s Campbell v. Acuff-​​Rose deci­sion, on which I rely in my quick analy­sis above, would make this an almost open-​​and-​​shut fair use case. The unpub­lished nature of the work under­mines that in some mea­sure (see, e.g., Harper & Row v. Nation Enterprises); but I still think the copier’s fair use case is quite strong.

The rest of the arti­cle is worth read­ing: Copyright Law and Cease-​​and-​​Desist Letters.

Update: a court ruled against the fair use defense.