I was a little flabbergasted by how the law firm that claimed that copyright law prohibits the republication of a cease and desist letter. That issue discussed here: Copyright vs. Free Speech in Cease and Desist Letters.
Watching the firm keep on digging is starting to feel like watching a train wreck.
One commenter said:
Dozier, the more you post the more paranoid you appear… [i]n the end, you’ll make a fool out of yourself and your law firm. (source)
Agreed. But lets unpack the arguments:
In criticizing “liberal ‘free speech’ types” (his words) who believe in fair use, John Dozier gives us this mind boggling twist:
Do the free speech groups really believe in free speech? No. Just speech they agree with. Free speech is a noble concept in their minds, but their minds are clouded by a bias and prejudice against businesses. Consider the irony of FREE SPEECH GROUPS PROTECTING TACTICS USED TO SILENCE CRITICISM. That is what their “fair use” defense does. Let’s walk through this for a moment.
Your business is attacked viciously online with damaging lies. If your business lawyer criticizes the blogger, and demands a retraction, you know that there is a real possibility this blogger could publish your letter and create a “mobosphere” attack on your business that would far outweigh the damage to date. Your business is inhibited from voicing your criticism because of the fear of reprisal, and the primary fuel for this reprisal is the threat of publication of your criticism. Free speech groups actually encourage their constituents to post these demand letters, providing further high profile attention to the issue and participating in the “mobosphere” attack. Why are the letters published? To discourage businesses from voicing their criticism of the blogger criticizing the company. Since when did free speech protections not apply to businesses? (source)
As wrong as he is, this is pretty good kung-fu.
Tell “free speech types” that if they disagree with you publicly, that they are actually suppressing your right to free speech, because (activate whiny voice protocols now) if you challenge my position, I won’t want to say anything anymore. It is sort of a three-card-monty free speech argument. Interestingly enough, this is the same argument used by anti-speech liberals who support speech codes and unconstitutional hate crimes legislation.
If you send a cease and desist letter to a blogger (or anyone else) you need to feel enough strength in your position that posting the cease and desist won’t discourage you from taking further action. There are a few views I have that I don’t publish. Why? Because I am not yet prepared to defend the criticism that they may draw. I have engaged in self-censorship.
That doesn’t mean that my rights are being violated. I know that I have the right to espouse any view that I want. But, if my confidence in my view is outweighed by the potential reaction or counter-point, then I exercise my right to shut the hell up. When I have completed my research on these views, then I will exercise my right to free speech.
If you speak, any recipient of that speech has a right to challenge your views — that is how the marketplace of ideas works.
when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .
Abrams v. United States, 250 U.S. 616, 630 (1919) (HOLMES, J. dissenting).
Let me break it down in Dozier’s terms:
Lets say I write a blog posting that says “Billy Bob’s Construction Builds Unsafe Homes” (this is a hypothetical business). Let us presume that it is a lie, and I’m just pissed off at Billy Bob because he stole my girlfriend.
Billy Bob’s will probably send a letter to me demanding that I remove these lies from my blog. Now the ball is in my court. If I can’t back up my assertion, do you think that posting the cease and desist letter will gather me any support? How many people will back up my lies? If I post the cease and desist letter, readers will likely want to look into the issue before taking a side. If they do, will the truth not come out? I will only succeed in helping Billy Bob to get out the truth.
On the other hand, lets change the hypothetical: Lets say that my claims have factual support. If I post Billy Bob’s letter, and my readers look into the matter for themselves, they will figure that out too. Posting the demand letter will probably gather me support.
If you send a cease and desist letter, the only reason to suppress its dissemination to others for scrutiny and debate is if you do not have confidence in the factual or legal assertions made in the letter.
Dozier’s debate theory breaks down to this:
- Blogger speaks
- Dozier speaks
- Nobody speaks thereafter
The way it works in the real world, at least in America, is this:
- Blogger speaks
- Dozier speaks
- Repeat as necessary until someone wins
Bottom line: If you want to express your opinion, no “free speech type” would tell you to do otherwise (at least not in this context). An attacked business has a right to respond, either with their own statement or with a lawyer’s letter. The attacker has the right to a rebuttal. And so on, and so forth, until the debate is resolved in the court of public opinion, or in a defamation action. (here is a good story about how posting a nastygram can have positive results)
If anyone, myself included, puts forth any opinion more courageous than “it is a sunny day,” then someone is likely to challenge that opinion in the marketplace of ideas. That challenge isn’t suppressing free speech. That is how the marketplace works. You don’t get to put a wrench into the gears of the marketplace of ideas by mis-using the copyright act.
In my experience, the only times a company opposes the posting of a cease and desist letter is when they are doing something they want to cover up. When a company is acting within both ethical and legal bounds, they tend not to care if their letters are posted. (source)