Eric 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This letter is a confidential legal communication and is not for publication.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.
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.
Originally posted at Concurring Opinions
* * * *
This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.