"Cease and Desist” Takedown Letters can add buzz... and sales

Tue, 20th July 2010, 11:39

We have all heard about condescending letters sent out by lawyer types informing an offending party of copyright or trademark infringement. These “cease and desist” letters demand that the offender must immediately comply with the request under threat of further legal action. In many instances these letters may have been the first notice of infringing material. Or in other scenarios, the lawyer types were trying to sweep something under their clients rug.

While C & D letters certainly predate the web, like many things, the Internet has made them so more interesting. Back in the early days (2002), in an apparent response to criticism of its handling of a threatening letter from a Church of Scientology lawyer, Google began to make so-called "take-down" letters public. And in true Internet fashion, the sites sometimes became more popular!

ThinkGeek reported that they got a 12 page take-down notice from the National Pork Board, over a little parody they did on April 1 (April Fools). Seems the legal types felt using the slogan "The Other White Meat," while advertising Radiant Farms Canned Unicorn (yep... Unicorn) meat may confuse the consumer.

Big Pork also demanded that T shirt gurus Neighborhoodies stop selling, at once, a Tshirt product where "Alf" asserts that cats are "The Other White Meat." The public may become confused about which animal does, in fact, constitute an appropriately pale substitute for chicken. Cat or Unicorns

Neighborhoodies has again run afoul. This time for a logo of a newspaper that folded in 1966. Elissa, Senior VP, Marketing and New Business Development of Hoodies, wrote on the official company blog “We just got a cease and desist letter from the lawyers at the NY Times. Crazy, right? We’re tired of being bullied, so we’re not going to take this shirt down. We think the absurdities have to stop. That just wouldn’t be in the spirit of Jean Seberg, the inspiration for our shirt which she so stylishly sports in the movie Breathless.”

Not to be so quickly brushed aside, the legal hawks at the NY Times sent a C & D letter to the website host SoftLayer. “SoftLayer then requested we comply with a letter they received from the NY Times” Elissa told HostJury. Continuing, she stated “We took down the shirt ourselves, rather than have SoftLayer take down the whole Neighborhoodies web site. SoftLayer has been intimidated by the New York Times threat. It's not that they are unsympathetic, but a threatening letter from a giant like the NY Times can be scary. “SoftLayer wanted us to bear the burden of any legal fees they might take on. We're a small company, and we're not prepared to take on legal fees for other companies. We're in the process of moving to a more sympathetic hosting company.”

Under the DMCA Safe Harbor Provisions, Softlayer would be required to remove questionable material if certain requirements are satisfied by the representative of the originator of the C&D notice. In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. In this particular situation, this notice is not required by SoftLayer as the material in question was voluntarily removed by Neighborhoodies.

The DMCA also states a subscriber can provides a proper "counter-notice" claiming that the material does not infringe copyrights, and the service provider must then promptly notify the claiming party of the individual's objection. If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network.

It is interesting to note that the CEO of Softlayer,Lance Crosby is actually a lawyer. We have requested comment on a number of questions and are awaiting their response.

For now the waiting continues.  In the meantime the shirt can still be purchased at Hoodies brick and motar establishment.