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June 15, 2012

So You Got a Cease & Desist Letter. Now What?

by Katie

Unless you’ve been hiding under a rock, you’ve heard that Matthew Inman of The Oatmeal fame got a nasty cease & desist letter from an attorney representing the website FunnyJunk. The letter, aside from being rude and priggish, demanded $20,000 for some unarticulated harm. Inaman has responded by raising over $100,000 for charity.

(If you have been hiding under a rock, or aren’t a nerd, you can get caught up on the whole fiasco here.)

There are quite a few good posts about the legal issues involved and why the letter is a flaming pile of legal poo, but I haven’t seen any posts about what a cease and desist letter is, and what to do if  you aren’t Matthew Inman with millions of rabid internet fans and you get one of these nasty grams. So I decided to write that post.

First off, what is a cease and desist letter?

Cease and desist letters have two main purposes. The first is probably fairly obvious: it tells you to stop doing that thing you are doing and fix whatever harm you’ve caused by doing it. The demand to stop is based on a claim the author, or the author’s client, has a legal right to do or have something and you are interfering with that right.

By Butte-Silver Bow Public Library via Flickr.com

The second purpose of these letters might help explain why they often sound as if they were written by an angry pedantic badger. C&Ds, as the kids who have mountains of law school debt like to call them, are the first written smackdown in a potential lawsuit. As the first written smackdown, the author wants to include every detail, factoid and legal citation that might work in his favor.

Ultimately, the author hopes that you will be so frightened by the strength of his legal claims and the damning nature of the evidence he’s collected, you’ll stop whatever it is you’re doing  to avoid ending up in an expensive trial.

What a C&D is not.

A C&D is not legally binding. A C&D is the opinion of one attorney who is representing the person who feels harmed by you. Attorneys are sworn to tell the truth and not make false claims, but we’re not prohibited against having bad or even wrong opinions.

If you remember nothing else from this post, remember this: a cease and desist letter is just one attorney’s opinion on the law. If attorneys always had accurate opinions on the law we would not have a court system.

A C&D is not a guarantee of a law suit. While it’s likely the person writing the C&D will say they’ll sue you, and they might even genuinely have plans to do so, getting a C&D does not mean you will definitely be sued.

This doesn’t mean you shouldn’t take the letter seriously, because you should, but you don’t need to completely flip out. Suing someone is ridiculously expensive these days and most sane people try to avoid it.

What’s with all the lawsuit names and that § symbol?

C&D letters might be sent to normal people, but they’re written for other lawyers.

By Butte-Silver Bow Public Library via Flickr.com

The Cease and Desist Factory that sent you the letter hopes you’ll just do what they ask and leave it at that. But if you see an attorney, they want your attorney to know C&D Factory has a strong case. So they cite laws and court opinions that support their view of what’s happening.

When you see something that looks like this, 17 U.S.C. §506(a)(1)(A), that’s a citation to a law. Something like this, Smythe v. Jones, 123 F.2d 4567, 4570 (9th Cir., 2009), is a citation to a legal opinion. The opinion is the result of a court case and is the judge’s determination of how the laws at issue are properly interpreted in such situations.

C&D Factory cites those laws and legal opinions in hopes of convincing you and your attorney that the law is on its side.

What’s with the stilted way of talking? “Malicious intent” and “aforethought?”

Again with the “for other lawyers” bit. Legal claims are made up of elements or factors. Unless all of the elements exist, you ain’t got no claim. So in a C&D, the author will try and show that all of the elements of the claim he’s making exist. Rather than creatively rephrase those elements, attorneys regurgitate the legal language word-for-word like a Mama bird.

It might sound stupid to normal people, but it helps make sure other lawyers know exactly what’s being claimed.

So you got a C&D letter, what should you do?

You should talk to an attorney.

But before you call just any attorney, do some homework.

First: read through the letter and do your best to figure out what kind of law the author is talking about. Copyright? Trademark? Contractual obligations? You’ll want to find an attorney who has experience litigating that kind of law.

By Butte-Silver Bow Public Library via Flickr.com

How to find such an attorney? See if your area has a volunteer lawyers for artists program.  Many places do. Even if they can’t find you a pro bono lawyer, they’ll be in a good position to help you find an attorney with the kind of experience you need.

Another option is contacting your state Bar organization and asking about their referral program.  Many Bars (they kind lawyers pass, not the kind they drink at) have programs where attorneys agree to take cases on for a discount or offer a free evaluation. The referral program can give you the names of attorneys in your area that fit your need.

Second: collect information about the issue, factual information. If the dispute is about a website, find and print a copy of the website; locate the wayback machine version of the website if it’s been taken down. If it’s about payments that were or weren’t paid, print out ledgers or account statements showing the payments or lack thereof.

Do not write up 10 pages of your version of events with detailed explanations of why the other person is a jerkface.

The attorney will likely want to meet and talk with you about the letter and the events that lead up to it. At the first meeting, they may not want to read all of the information you collected. That’s OK. You can let them know it exists and offer them a copy if they agree to take on your case.

Hire an attorney the way you would anyone else about to delve into your deepest darkest secrets — if you don’t like the person, don’t hire them. There are lots of lawyers in the world; more than one of them can help you out.

If you end up hiring an attorney, be upfront with them. Tell them what happened, and don’t try to hide any facts from them, even if the facts are embarrassing. Make sure you tell them what you want out of the situation. Lawyers aren’t mind readers and you may want a totally different result than the last client did.

By Butte-Silver Bow Public Library via Flickr.com

I know hiring an attorney can be intimidating, but I really encourage you to talk to lawyer before responding to a C&D. Do not try and take care of  the situation yourself. Lawyers can be helpful beasts; let them do their job so you can go back to doing yours.

Featured image (c) 2012 Matthew Inman, The Oatmeal. You can donate to the goodness of bears and the badness of cancer here.

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