C&D letter

All cease and desist letters should be taken seriously. A cease and desist letter puts the recipient on notice that the sender believes the recipient's website infringes a copyright or trademark or somehow defames the sender. If you receive such a letter and do not believe that the materials infringe a copyright or trademark, or that the use is fair under the Copyright Act, you may opt not to remove the materials. Of course, if you ignore a demand, you might very well face a lawsuit.

The first step after receiving a cease and desist letter is to determine whether the material that is the subject of the letter relates to material created by you or by a user of your site.

If the letter demands that you remove or "take down" content that you created yourself, you must determine whether 1) the sender has a valid legal claim and 2) if it relates to copyright infringement, whether you are making "fair use" of the materials. If you think the sender has a valid claim and you don't have a strong defense, you should comply with the demand letter. 

If the letter demands that you remove or "take down" content submitted by a user, you should determine whether the complaint relates to 1) copyright 2) trademark or 3) defamation.

• User-submitted Copyrighted content: You have an obligation to take the material down in order to be in compliance with the Digital Millennium Copyright Act (DMCA). Section 512 of the DMCA contains what are called the "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright infringing material from other online sources, so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing.


• User-submitted Trademarked content: The DMCA safe harbor provisions only apply to claims of copyright infringement. Therefore, they do not provide any protection against trademark claims, whether for trademark infringement, trademark dilution, or cybersquatting. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, like an allegedly infringing use of a trademark. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so. For information on the difference between copyright and trademark, see the Chilling Effects FAQ on Trademark.


• User-submitted Defamatory content: If the letter demands that you remove material in a user post because the material is defamatory, you are likely to be immune from liability under section 230 of the Communications Decency Act. As a result, you are under no obligation to take down the material. See our Primer on CDA 230 for more on this subject.

CMLP is often asked whether a website owner could face copyright liability for posting a cease and desist letter to his website. Senders of demand letters often include clauses warning that the cease and desist letter is itself copyrighted by the sender's attorney or law firm and that the recipient may not republish it in any manner. Such letters usually state that the use of all or part of the letter will subject the website owner to further liability. Companies have their attorneys include these types of clauses in cease and desist letters because they fear what is known as the "Streisand Effect" and want to avoid having to publicly respond to criticism on websites and blogs.

In addition to protecting the rights of content producers, a goal of the Copyright Act is to permit uses of copyrighted materials considered beneficial to society (many of which are also entitled to First Amendment protection), and to prevent companies from threatening prosecution and using the Act to hide from criticism. As a result, it is "fair use" to post many cease and desist letters on one's website. This is because fair use may protect the publication of the content of private letters and email, including communications from lawyers threatening legal action. Note also that if the copyright in the letter is not registered, the author of the letter cannot sue to enforce it. 

Section 107 of the Copyright Act defines fair use as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. and the effect of the use upon the potential market for or value of the copyrighted work. 

For information on how a court would evaluate these four factors in your particular situation, refer to CMLP's Legal Guide on Fair Use.

You may also want to check out the Chilling Effects Clearinghouse, an online resource containing information on the protections that the First Amendment and intellectual property laws give to online activities. The Chilling Effects Clearinghouse organizes cease and desist letters into a searchable database. The Clearinghouse's goal is to document the chilling effect that these notices have on Internet users. Once the cease and desist letters are inputted into the database, the Clearinghouse links the legalese in the letters to FAQs that explain the allegations in plain English. 

Finally, consider submitting the cease and desist letter to CMLP's Database of Online Legal Threats. The database contains lawsuits, cease and desist letters, subpoenas, and other legal threats directed at those who engage in online speech.