Taylor Swift (Photo by Karwai Tang/WireImage)
The blog PopFront published an article presenting a fairly detailed argument that Taylor Swift is at the very least unwittingly seen as an icon by the forces of racial hatred and at worst willingly fanning the flames of that base. It’s a thought-provoking piece and should inspire Swift to reconsider a number of her artistic and personal choices as a public figure.
But instead it inspired her to engage an attorney to write a ridiculous cease and desist letter. Taylor’s been known to hang out with Barbra Streisand before, and apparently she’s now taking Barbra’s lessons on how to deal with the Internet, because it’s probably safe to say more people have read PopFront’s post in the last 24 hours than did during its initial publication.
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The unlucky lawyer who’ll be forever attached to Swift’s laughable effort to intimidate PopFront is Venable LLP partner William J. Briggs II. Oh, Taylor, look what you made him do!
In his long cease & desist letter to Meghan Herning, the Executive Editor of PopFront, Briggs offers the standard overreaching factual misrepresentations and hyperbolic threats about defamation per se (the last refuge of the impugned celebrity!), but provides an exceedingly light helping of caselaw for a four-page letter. He’s got a blank space, baby, and he’ll write your name, assuming your name isn’t a citation to any legally binding precedent.
But the real knee-slapper is in the last paragraph of the Briggs letter:
This is a confidential legal notice and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of Copyright Act. You are not authorized to publish this letter in whole or in part absent our express written authorization.
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That’s not how this works. That’s not how any of this works. (UPDATE: And it’s been tried before and it wasn’t how it worked then either.)
The generous interpretation is that Briggs had some inkling that this was ridiculous, but threw this in when his client freaked out that she wanted the legal equivalent of having her cake and eating it too: successfully bullying a critic without anyone ever hearing about it. At that point Briggs threw together the only concepts he could brainstorm that might silence an online essayist without access to legal counsel. But the customer isn’t always right, and it’s the attorney’s job to protect the client from themselves. That said, that’s the generous interpretation — we shouldn’t rule out completely that he honestly thought the Copyright Act protected his cease and desist letter.
Unfortunately, either way Briggs and Swift underestimated the possibility that a beleaguered writer might pique the interest of the ACLU of Northern California. In a scathing response, attorneys Michael Risher, Christine Sun, and Matt Cagle systematically dismantle the Briggs letter, with legal acumen and pointed wit. However, they save some of their most devastating swipes for the claim that cease and desist letters cannot be published. After noting that legal threats aren’t confidential (“you cannot really expect that a person who receives a letter like this will feel any duty to keep this matter a little secret between the two of you”), the letter walks through the basics of Fair Use:
Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated. Although the text of the letter has not changed, the use has, which weighs in favor of fair use.
Assuming fair use is even at issue when there’s no real copyright claim to the underlying letter:
Copyright is meant to “promote the Progress of Science and useful Arts,” not to allow lawyers to send threatening, speech-suppressing letters in secret. See U.S. Const. art. I, § 8, cl. 8. It cannot be used “as a sword to suppress publication of embarrassing content rather than as a shield to protect … intellectual property.” Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1205 (N.D. Cal. 2004). In short, you may no more use copyright law to hide the contents of your letter from public scrutiny than a kidnapper could use it to prevent his victim’s family from giving a copy of the ransom note to the police.
Dear William Briggs, I’m going to let you finish, but the ACLU of Northern California has written one of the best letters of all time.
Venable’s Cease & Desist Letter [ACLU]
ACLU Response [ACLU]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.