Is it copyright infringement to post a lawyer’s cease-and-desist letter?
Shollenberger has indeed published the letter, in the process of responding to it (see also here). Is posting cease-and-desist letters in such a situation indeed copyright infringement? I can’t speak to Australian law on this, but here is my view of American law, which I first blogged about in 2008:
A. Letters are indeed presumptively protected by copyright. Generally speaking, pretty much anything that’s at all original (not necessarily innovative, but just the author’s own writing) and longer than several words is indeed copyrighted the moment it’s written down.
B. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work. Here’s a quick run-through of the four fair use factors, and how they apply to such uses of cease-and-desist letters:
Read it all here to find out what his opinion is on Brandon’s calling their bluff.
So the story of their ridiculous threat letter has hit the big time, legally speaking. As I said at the beginning:
Not only have they just invoked the Streisand effect, they threw some gasoline on it to boot.