Malik v. ScamFraudAlert.com

On June 20, 2008, counsel for Bernard Malik sent a cease-and-desist letter via email to the administrator of ScamFraudAlert.com, a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices. The letter asserted that a forum user going by "justiceismine" posted false and defamatory statements about Mr. Malik and his organization, International Open University, on ScamFraudAlert.com (see the letter for details). It demanded that ScamFraudAlert.com remove the allegedly defamatory posts and provide "identifying details, including but not limited to the e-mail address and login IP addresses for 'justiceismine' so that Mr. Malik can take further legal actions."

The letter also claimed that ScamFraudAlert.com is not entitled to the protection of section 230 of the Communications Decency Act because it "solicit[s] and encourage[s]" defamatory posts from users and subscribers, citing as support the Ninth Circuit's decision in Fair Housing Council v. Roommate.com, LLC. This is an unconventional reading of the Roommate.com case. Counsel also claimed that the letter itself is copyrighted and advised ScamFraudAlert.com not to publish it.  The letter elaborated:

Contrary to the opinion of some Internet bloggers, the Federal Courts that have ruled on the issue, as recently as November of 2007, have held that an attorney's cease and desist letter is protected by copyright laws. Any unauthorized publication of this letter will potentially expose you to substantial damages for copyright infringement. 

The November 2007 case referenced in the letter,  In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.COM, LLC, 2007 WL 4335441 (D. Idaho Dec. 7, 2007), sparked a flurry of online debate on the topic of the copyrightability of cease-and-desist letters. While the Dozier Law Firm and others (including apparently counsel for Mr. Malik) view the case as establishing copyright protection for cease-and-desist letters, the case only touched on the narrow question of whether the C&D in that case was sufficiently original to be protected by copyright, and the court expressly stated that it would "not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena." Most importantly, the court did not address the strong argument that publishing a cease-and-desist letter for purposes of documenting it and commenting on it is fair use.

The administrator and Mr. Malik's lawyer exchanged additional emails without coming to agreement about the disputed content. As of July 7, 2008, no further action has transpired.

Update:

7/15/08 - Counsel for Malik sent a DMCA takedown notice to ScamFraudAlert's web host, NationalNet, Inc., claiming that posting email communications between counsel and ScamFraudAlert infringed Mr. Malik's copyrights.