This just in from the “I told you so” and “what the hell were they thinking?” departments, Eugene Volokh writes in The Volokh Conspiracy at the Washington Post:
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.
Feckless bureaucrats.
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As has been famously spoken: “Stupid is as stupid does.”
A “cease and desist” letter, when without merit, is an attempt at intimidation. Because the letter is sent by mail its issuence is a felony under the US mail and wire fraud act (depriving the recipient of “honest services”).
http://upload.wikimedia.org/wikipedia/commons/thumb/f/f6/Streisand_Estate.jpg/1200px-Streisand_Estate.jpg
F Ross (9.15 or thereabouts)
When you employ someone, you can reasonably claim that what they produce for you is “work for hire” and thus you can own the copyright of what you produce. However, when you retain a lawyer (or any other professional) it is not always clear whether what they produce falls under “work for hire”. As a consultant, my contracts explicitly address who owns the outputs, but this has to be spelled out in the contract.
Ownership of data, results, inventions, ideas etc. really should be dealt with in people’s employment contracts because if it is not, there is confusion over who can do what with their work. For example, academics at universities pretty much always retain copyright (under their employment contracts), since they have to be able to assign this to journals when they get an article published. At most US universities, because the university has a responsibility to protect inventions (as a way to attracting investment in developing the invention into a product), employment contracts specifically state that even though you “own” your research, the university has all the rights about protecting, licensing etc. Finding out who has the right to make a deal is the biggest hurdle in technology transfer. When the “invention” is something which falls under copyright (computer programs for example) there have been some interestingly complicated legal battles.
@Rob says:
May 22, 2014 at 7:19 am
“…
However, when you retain a lawyer (or any other professional) it is not always clear whether what they produce falls under “work for hire”. As a consultant, my contracts explicitly address who owns the outputs, but this has to be spelled out in the contract.
…”
Thanks for the partial clarification.
Probably not, but one still wonders if it would be beneficial to Brandon Shollenberger to contest who owns the copyright to the C&D letter. Just as a sort of harassment to the U of Q if nothing else.
@Aphan says:May 21, 2014 at 7:08 pm
Results IS THE DATA. Aphan you are confusing results with an opinion on the data.
correct me if I’m wrong, but the whole notion of even bringing a suit or attempting to claim cease and desist in this situation seems completely inapplicable? I haven’t really seen anyone touch on this, but in the event of an NDA/confidentiality agreement only the parties signed on that agreement are liable/responsible for data protection/management/losses. If one of the signed NDA parties discloses or publishes the data (like putting it on a publicly facing domain) then it’s my understanding that only the publishing party would be responsible for damages/losses.
I suppose I could be incorrect about that, but having signed a few NDAs previously, I didn’t think any party that legally obtained data/IP that has been published could be liable for anything? So shouldn’t UoQ be going after Cook if they want to sue someone for damaging or breaching their IP/confidentiality agreements?
I read the article and the lawyer comments, and all of their logic seems sound. But they do seem to miss the point. What the University is trying to do, essentially, is enforce a non-disclosure agreement that has not been agreed to by both parties. Copyright law cannot be used to create a unilateral non-disclosure agreement. So the letter has no binding force unless a real non-disclosure agreement had been signed by both parties previous to receiving the letter.
Brokenyogi…
Correct, unfair contracts terms. The non disclosure term has to be agreed before the letter is opened. This can be implied, but I don’t see how in this case. A contract can only exist with consent and without duress.
I wondered about the doctrine of “fair use” in this case. A quick consult of Wikipedia indicated that Australia does not have the same concept in copyright. Australia has “fair dealing” which is more restrictive. However, “fair dealing” does allow exceptions to copyright for “review or criticism” and
“research or study”.
UQ: This is a university – you can’t question our talking points!
This is tantamount to an admission that they don’t do science at University of Queensland.
Next time my son’s teacher downgrades him for not showing his work in math, I think I should have him tell her that according to today’s universities, it’s no longer required….
Let me make something clear to those outside Australia. Australia isn’t part of the USA (but sometimes it’s hard to tell) and our law does not reflect the United States constitution – So for example Freedom of Speech is a common law right in Australia rather than a constitutional one. Australia’s constitution deals mostly with matters pertaining to the separation of Australia from the British Empire rather than as a model for her people. As recently demonstrated by the previous government Australian’s free press or freedom of expression could be legislated away in an instant. It’s a problem Australians have long had, and there are many (including me) that believe a “Bill of rights” needs to be added to the constitution. The lack of certain constitutional rights or rather the existence of them in the USA has meant that USA laws act differently to ours and copyright is one such area – the USA is a very latecomer and the constitutional rights of the USAs citizens have molded the exemptions you get. For example in the copyright act we have most of the bad stuff that aids the RIAA and Hollywood, but few of the protections of fair use that exist in the USA. Unless things have changed since I last studied the act, for example it wouldn’t be strictly legal to take a copy to backup something you legally obtained here, similarly fair dealing doesn’t extend to say format shifting although its very likely technology will overthrow that. On the other hand as I read the act copyright here isn’t a right of possession – it’s a right to Reproduce, so trying to unilaterally contract “Conditions” that say what can be done with the content you legally purchase are possibly unenforceable. Many shrink-wrapped copyright statements are probably unenforceable because of that.
Googles recent copyrighting of an API would be unenforceable here because we have an interoperability exemption for making an interoperable product.
(End of relevant stuff pertaining to Australian copyright – irrevevant off topic rant begins below)
Personally I think copyright has done it’s time and it should be dispensed with entirely, patents, registered designs and trade secrets are enough – Open source has shown that it’s entirely possible to monetize goods unprotected by copyright. Hollywood could easily monetise via first showings rights, technological protection measures and merchandising rather than in having a state sanctioned legal monopoly to a market. For example does Google need Copyright to make money from its relatively trivial search engine, does it need to sue Yahoo et al to stay in business? Frankly, Rampant piracy of Windows 3 is what put Microsoft in it’s dominant position today. Where is linux today? How ’bout Unix – where is the viable market?
The IP Market is in fact an entirely artificial market just like the CO2 market, it takes an entirely intangible and ubiquitous (frankly valueless) commodity (expression) and tries to give it some artificial value through legislated penalties – just like Cap and Trade does. Copyright needs to go as CO2 Trading needs to go.
but….. the price of Popcorn!
This is a storm in a teaspoon.
The definitive finding from the paper is that over 97% of the authors of research investigating climate support the view that the majority of the warming in the last decades is anthropogenic.
The secondary finding is that people reading the abstracts of papers published by those scientists where able to guess those pro-AGW views better than just ascribing the papers at random to support or reject AGW.
The ongoing disputes about how much data is available looks more and more like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.
Could anyone explain what possible information in the study methods could cast any doubt on that result ?
Izen says:
The definitive finding from the paper is that over 97% of the authors of research investigating climate support the view that the majority of the warming in the last decades is anthropogenic… The ongoing disputes about how much data is available looks more and more like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.
“Gold standard”??
Izen, you are off the deep end. Your entirely baseless assertion has no supporting scientific evidence at all. That ridiculous “97%” nonsense has been repeatedly debunked. It is religious dogma to you, but rational folks know better. It is crazy talk, nothing more.
Common sense tells me that UofQ knows that the Lewandowsky work is deeply flawed, or they would be happy to provide the data that backs it up.
I’ve read that the Cook paper isn’t what is being used to say that there is a consensus but a survey done by the National Academy of Sciences.
If anyone knows anything about this – what are they referring to? Is it something different or is it the same thing or is it something made up out of whole cloth?
…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…
I don’t think the copyright can be ‘rebutted’. It exists. The point is, what is its legal effect?
As Will Nitschke says earlier, copyright is primarily concerned with commerce and trading – money. If a letter contains a phrase which becomes financialy valuable – a catch-phrase which can be printed on T-shirts, for example – the original writer can control the commercial use of the phrase. Charging royalties for each shirt printed, for example.
But there is no commercial process going on here. The original writer is trying to lever copyright to suppress free and fair coment – not to avoid paying a creative person a fair rate for their work. All courts would immediately throw out this copyright claim.
But of course, that isn’t the point. The point is that you can sue anyone, for almost any reason. I could sue Anthony for damages, claiming I dropped a cup of hot coffee in my lap when I laughed as I read one of his pieces. I would lose, of course. But the threat of being sued is intended to frighten your opponent into withdrawing because of the associated costs and work….
bobl says:
Open source has shown that it’s entirely possible to monetize goods unprotected by copyright. ..
Er… Open Source and other ‘open’ products are HEAVILY protected by copyright. It’s just a different kind of copyright – often referred to as ‘copywrong’. Google ‘Creative Commons’ for a fuller explanation …
I would like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.