Think carefully about those cease and desist letters

I’m not sure where it happens. I went through three years of law school, and I don’t recall that my school ever offered such a course. But somewhere, lawyers learn to write a cease and desist letter. The working theory seems to be that if the letter is threatening enough (damages, treble (that’s triple for those not versed in lawyer-speak) damages, court costs, attorney’s fees, being turned into a pillar of salt) that the other side will just cave in and do what the lawyer’s client wants. Even as I write this, there are probably partners in law firms all over the country explaining to associates how the letter doesn’t contain a large enough threat.

Someone needs to introduce those partners (and everyone else) to the Internet. This week has shown us what happens when lawyers don’t think about what might happen if their threatening letter gets posted online.

A gent by the name of Matthew Inman is the creator of The Oatmeal. The site features clever (and occasionally R-rated) cartoons that amuse but also drive home a point. About a year ago, Inman discovered that another web site was posting his comics and, in some instances, making money off of them. Inman wrote a post about it. The owner of the other site responded, in a way, and Inman offered his observations on the response.

Although plenty of Inman’s comics remained on the other web site, he decided he didn’t want to deal with sending DMCA take-down notices. He had better things to do with his time—which is a perfectly reasonable way to end the matter.

Until this week, that is, when the other web site’s lawyer sent Inman a letter demanding that Inman do certain things, including paying $20,000 in damages. The letter is full of the usual legal assertions and threats.

Big mistake.

What did Inman do? He wrote about it on his web site and skewered the letter. He also skewered the attorney a bit by linking to some photos of the attorney. Inman also decided to ask for donations, pledging when he hit $20,000 that he would take a photo of the money, then give one half to the National Wildlife Federation and the other half to the American Cancer Society. As of this morning, just one day into the campaign, over 9900 donors have contributed $143,000.

The result? The attorney looks like a fool, his client looks like a fool, and just about everyone on the Internet knows about it.

Has the attorney learned anything? Apparently not. Instead of just saying, “You know what, this backfired. Let’s make peace,” the attorney tried to claim that the donation campaign was a violation of the terms of service of the hosting web site (which appears to be a rather dubious assertion). According to a report on MSNBC.com, he tried to get it taken down. In doing so, he succeeded in bringing even more attention to his client’s ridiculous demand, and he made himself look not only foolish, but willing to screw up over $143,000 in donations to good causes as well. In short, he’s proven himself to be a lawyer who is also a jerk. That image works for some lawyers, but I happen to be one who thinks it is counter-productive.

This is not the first time in recent months we’ve seen a lawyer’s cease and desist letter backfire. Back in January a small brewery responded to a cease and desist letter (claiming trademark infringement over a beer name) by sending a letter to say, “Hey, no big deal, we won’t do it again.” The letter went on to say that the client could have simply asked nicely, and the writer looked forward to trying the other brewer’s beers. It also included a hand drawing of a dinosaur waving white flags.

In both of these examples, who came out looking like the winner? The client who claimed its rights were violated and deserved all that the legal system could offer? The lawyers? Or the recipients who responded with humor?

As a public service to my colleagues in the legal profession, let me offer some suggestions for writing a cease and desist letter that won’t embarrass anyone if it gets posted online. Feel free to copy this model—I place it freely into the public domain.

Dear So-and-So:

I represent Yodel, Inc., who has contacted me regarding a matter that concerns them. Based on what my client and I can tell, you may be acting in a way that violates federal/state laws and that opens you up to a lawsuit. My client and I believe this may be the result of a misunderstanding, so we would like to try to sort the matter out quickly and with a minimal amount of hassle (not to mention expenses). Below, I will explain what acts we think are problematic, outline the law that applies, and then offer some solutions.

On your web site, you have [describe the offending conduct in non-legalese]. The URLs we find to be problematic are [insert here].

Under federal/state law, these acts constitute copyright/trademark/whatever infringement. You may wish to review these statutes/cases (although they may be confusing to people who are not familiar with this area of the law). It might be helpful to discuss them with an attorney, if you wish.

My client feels the best way to resolve this situation is to discuss it and find a solution that is satisfactory to both parties. Therefore, we would ask that you (or your attorney) contact me by [date]. I need to let you know that if you do not contact me, then my client will need to consider filing suit against you so that my client’s legal rights are not waived. My client feels strongly that both sides have more productive things to do with their financial resources than fight a lawsuit, but it is willing to do that if you are not interested in working out a friendly solution.

Thank you for your consideration. I will look forward to hearing from you soon and working with you to solve this problem.

Sincerely,

Sam Legaleagle

Admittedly, that letter may be slightly too casual, but you get the point: emphasize the desire to reach an agreement that makes both sides happy, and explain that litigation is not desired but might be necessary so some other party doesn’t claim waiver. If need be, blame the legal system: “[My client doesn’t want to sue], but our legal system is such that if my client does not take steps to address this problem, other parties might try to take advantage of the failure to file a law suit. The legal system would permit those other parties to argue that my client waived its rights by not taking action.”

If you just can’t bear to write a “soft” cease and desist letter, then try this idea instead. Draft your standard C&D letter, but send it with its own cover letter that reads like this:

Dear So-and-So:

Enclosed you will find a letter that demands you stop doing [whatever]. This is our standard letter, and I am sending it in order to protect my client’s legal position. My client would like very much to resolve his/her/its concerns without the need for both sides to “lawyer up” and spend a lot of money in a lawsuit. Therefore, please contact my client directly or me so that we can explore possible solutions. Please note that if my client or I don’t hear from you, then my client will need to file a lawsuit to make sure some other party doesn’t claim my client waived its rights by not taking action. Again, my client strongly desires to work with you in a productive way to solve this problem as quickly and inexpensively as possible.

Sincerely,

Sam Legaleagle

The opposing party may tell your client to stuff it, and if so, fine. But this approach will make it much more difficult for someone like Matthew Inman or Firetail Brewing Co. to create a public relations nightmare for you online.

Update: June 15, 2012. It appears that the fundraising site Inman chose has told the lawyer to buzz off. Over $170,000 has been raised so far. Someone asked why I didn’t name the lawyer involved in this case. The answer is simple: I don’t want to do anything to improve his Google rank!

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