Web site “AAAA” writes opinions about companies. AAAA allows other so post their experiences. AAAA receives many customer complaints about company BBBB. The web site pretty much trashes company BBBB as most of the customer comments consider it a scam.
Web site AAAA receives a cease-and-desist order from BBBB complaining about AAAA’s derogatory remarks (even though most of the complaints are from BBBB’s customers). As part of BBBB’s letter, they inform AAAA that the letter is copyrighted and that AAAA is forbidden from posting said letter on its web site. It’s kind of a non-disclosure clause where only one party has agreed to the non-disclosure.
Can they do that? In general, if one receives any correspondence (e.g. junk mail, personal letters from anyone, ), does one need the sender’s permission to post it on his web site? If one can’t post the letter verbatim, how much can be disclosed? After all, AAAA’s web readers should be warned of BBBB’s tactics.
Unless you have some contractual obligation to them (e.g., by signing a non-disclosure agreement), the only law that they can use against you is copyright. That means that the particular expression in the letter is protected, but not the facts described and allegations made. So AAAA can tell on its website what BBBB has said in the letter, as long as it doesn’t directly quote from the letter.
In addition, a “cease-and-desist” letter is unlikely to have much original literary content, and what is original in the letter is unlikely to have significant commercial value. So, even if AAAA published in full, I doubt if BBBB would get significant damages in a court action.
But I’m not a lawyer, and certainly not your lawyer: this is just half-baked half-educated opinion.
I’d love to see an actual legal opinion on that. It’s been standard operating procedure for years to post a scanned image of a “cease and desist” letter on your website when you get one. Many sites have done so either to explain why they took something down, or to mock the company sending it. If that “you can’t print this” clause actually holds water, it would surprise me.
Well, I was saying that they might have a case under copyright. Most such letters won’t say, “Don’t publish this,” so the question of copyright becomes even more remote. However, they can’t claim that it’s confidential unless there’s some contractual basis for that, so AAAA can tell anyone it likes the substance of the letter, as long as they don’t quote enough for a copyright suit.
The letter is copyrighted. See Salinger vs. Random House (Yes, J.D. Salinger), which extends copyright protection to unpublished letters. The copyright law makes everything copyrighted. You cannot copy an entire document without permission.
There are fair use issues, which you could claim if you just quoted from the document, but probably not if you copied it completely.
If you were sued, it’s a crapshoot. If the copyright isn’t registered (most likely, it isn’t), then all they can make you do it take the document down. If it is registered, they can have you pay damages unless you can convince the court it was fair use, which is probably expensive and unlikely.
Me too. Although our copyright laws do tend to fly in the face of common sense, it still would surprise me to learn that legal documents are not an obvious necessary exception. I would hesitate to put such things in the same category as personal letters.