[Commons-Law] Copyright Violation of Copyright-Violation Cease and Desist Notices

[Pranesh Prakash]

Dear All,
A court in the U.S. has ruled that there is prima facie evidence of a case
against a blogger who put up a registered-with-copyright-office
cease-and-desist letter.  That doesn't mean that there is no fair use
right/defence allowing the defendants to post the letter, though.  For
details: http://pubcit.typepad.com/clpblog/2008/01/does-copyright.html

I wrote something a while back about a different case involving the same
lawyer (in which this issue of C&D letter is the same).

----------------
There is a new claimant to the title of *Maker of the Most Ridiculous Claims
about Copyright Ever*: the U.S. law firm Dozier Internet Law P.C. Only a
short extract of it's User Agreement/Privacy
Policy<http://www.cybertriallawyer.com/user-agreement>is needed to
make readers understand why that is so:

Dozier Internet Law, P.C. has a lot of intellectual property on our site.
For instance, we are the creators of all of the text on this website, and
own the "look and feel" of this website. We also own all of the code,
including the HTML code, and all content. As you may know, you can view the
HTML code with a standard browser. We
do not permit you to *view* such code since we consider it to be our
intellectual property protected by the copyright laws. You are therefore not
authorized to do so. [emphasis added]


A basic primer in copyright law seems to be required here. It is true that
copyright goes beyond just copying these days. In some situations,
"copyright law" even prevents *access* to the material that is to be read,
as is the case with anti-circumvention laws (which are a part of the Digital
Millennium Copyright Copyright Act in the U.S.). But what copyright does not
do: prevent you from reading something. Copyright basically grants the
holder certain rights which only she can enjoy. Hence, she has the exclusive
right to creat copies of the work, to communicate it to the public, etc.
However, she does not have the sole right (at by virtue of only copyright
law) to read her own work.

For the technically uninitiated, the HTML code referred to in the terms of
the User Agreement is what all pages on the World Wide Web actually are,
behind all that gloss and glitter. A web browser, whether is Opera, Safari,
Firefox, Internet Explorer, Konqueror or even something like Mosaic or Lynx,
basically passes that HTML code through a 'rendering engine',
and displays the output. Web authoring software, CMS's and blogging
platforms only make it easier for you to write that HTML code by doing the
coding for you. (Going through the source code of the Dozier site shows
they've used Adobe GoLive for HTML authoring.) What is finally put on the
web is only HTML. And finally, whether you like it or not, each time a
person visits your webpage, a copy is made on that person's computer. What a
browser shows you is not the actual webpage, but a copy of that webpage.
(You can test this out by opening an HTML file saved on your computer in
your browser, and when it is being displayed, deleting that file. Your
browser will continue to show it.) All browsers allow you to view the HTML
source code of the page you're on. In most, you just have to go to "View" on
the menu bar, and click on "Source" or "Page Source". So, basically, after
you (or, to be more precise, your computer/mobile phone/Wii, etc.) has *
copied* this code, Dozier Internet Law tells you that because they own the
copyright in the code (not a completely true claim, as we'll see shortly),
you may not *read *it (even though just by viewing the site your browser has
'read' and copied it)! If you actually go through the source code, on line
47 you shall see the following:

// OpenPopUpLite 2.0.1 action by Nate Baldwin, www.mindpalette.com,
copyright 2004


That is a comment preceding a particular javascript function (that they have
used on their webpage) noting that the function was authored by a Mr. Nate
Baldwin of MindPalette.com. So, they don't actually "own all of the code,
including the HTML code, and all content" as they claim to.

The agreement continues:

The name "Dozier Internet Law, P.C.", and similar derivatives of it,
constitute our trademark and servicemark, and should not be used* in any
manner* without our permission. . . . You are not authorized to use our
name, or any derivative of it. In other words, do not put our law firm on
your website suggesting you have an attorney/client relationship with us
without our permission.


The protection afforded to safeguard a trade mark holder's commercial
interests, and certainly does not cover such things as commenting about a
corporation by referring to it by its name (as we are doing here). Sony, for
instance, is a trade mark, and I do not violate the trade mark by using that
word in this posting nor by posting an opinion as to the exceptionally short
lifespan of their Trinitron CRT TVs. However, all these provisions don't
rely solely on copyright and trade mark law, but on the tacit acceptance of
a viewer to be bound by those contractual terms, regardless of whether they
are within the limits of IP law. So, interestingly, it would seem that a
person who has not visited Dozier Internet Lawyer's website, but has only
read about them, can validly (as per Dozier's user agreement) link to their
website, and do any of the things that those who visit the website are
prohibited from doing! Practically speaking, this would now (since this
issue has gained prominence) make it almost impossible for Dozier Internet
Law to sue anyone for breach of contract. For instance, in this post there
is no quotation from the firm's website or from their source code that is
not already available on third-party websites.

Thus it would be impossible for Dozier Internet Law to prove that I have,
while writing this post, violated their User Agreement, because I always
have open the defence that I never visited their site to be bound by those
terms. Dozier Internet Law has come into the limelight recently for seeking
to enforce such contractual provisions on behalf of one of its clients. (It
has also gained notoriety for having sent out cease-and-desist
notices<http://pubcit.typepad.com/clpblog/2007/10/dont-publish-th.html>,
which contained a warning to the recipient not to publish the notice as that
would constitute infringement of their copyright in the notice. That shall
be the subject of another post.)  That client is a company called Inventor-Link
LLC <http://www.inventor-link.com/>, which promises to help inventors get
their inventions to the marketplace. (For a more complete account, please
read this excellent
entry<http://pubcit.typepad.com/clpblog/2007/10/you-hereby-agre.html>in
the civil rights group Public Citizen's Consumer Law and Policy Blog.)
Inventor-Link's Privacy and User
Agreement<http://www.inventor-link.com/privacy.htm>notes:

By using this site you agree and understand that the HTML code, look, feel,
content, *company name*, logo, text, and any likeness or derivative of such
content is the sole property of Inventor-Link LLC and *may not be used in
any manner *without the expressed written permission of Inventor-Link LLC.
Furthermore, we strictly *prohibit any links and or other unauthorized
references to our web site without our permission*.

A website, InventorEd.org <http://www.inventored.org/>, which has details on
invention-promotion scams, posted a link to the Inventor-Link website,along
with a short bit copied from an about-us page on Inventor-Link's site.
Following that, they had criticisms of the company's practices. Dozier
Internet law promptly sent off a notice to
InventorEd<http://www.inventored.org/caution/inventor-link/Demand-Letter-1.html>citing
defamation and breach of contract. So, they are trying to prevent all
criticism ("company name. . . may not be used in any manner") and through
contractual means are trying to stop what would constitute fair use (fair
dealings) under copyright law.

For an analysis of when such "browse-wrap" contracts (analogous to
shrink-wrap contracts) are valid, refer to the CL&P Blog's postings on the
Inventor-Link case<http://pubcit.typepad.com/clpblog/2007/10/you-hereby-agre.html>,
and in a court-decided
case<http://pubcit.typepad.com/clpblog/2007/07/courts-says-aol.html>.
But, as the CL&P Blog notes, the desired effect of such otiose provisions is
usually achieved, as "[c]onsumers who receive threats of litigation over
purportedly binding contractual terms are often more likely to shut up than
to bear the expense of retaining an attorney and defending their rights."

Note: In the past, copyright law itself has been invoked to prevent
hyperlinking to certain content. However, the content in that case (the much
criticised Eric Corley/2600 case) was content deemed to be illegal in nature
(the DeCSS code that broke CSS protection on DVD, allowing you to copy the
DVD's contents on to your hard drive). That could possibly be forgiven as a
judgment that was rendered when judges were ill-informed about the nature of
the internet. After all, analogously, pointing someone toward a banned book
in a library is not an offence. Even walking over to the shelf and handing
the book to that person would not be an offence if the person asked you to
help get the book; publishing the book would (as perhaps would distributing
it wilfully). The only other case I can think of when people object to
hyperlinking to their site is when they don't want their site indexed on a
search engine. Even then, it is a technical matter (using a no-robots tag)
and not one of contract. As far as I know, there is no precedent to someone
trying to contractually bind you not
to link to the site.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.sarai.net/pipermail/commons-law/attachments/20080129/8def193d/attachment.html