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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 91096
Experience:  Attorney practicing all aspects of copyright/trademark law
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Is email correspondence copyright protected And no, none

Customer Question

Is email correspondence copyright protected?

And no, none of the email correspondence involved contained that privacy notice at the bottom that we all sometime see.

The detail:

Our little hosting business is in California.

Over 7 years ago, we had a person sign-up for a hosting account that quite literally freaked out when her domain did not become active immediately (as in within the hour of registration) for her account. Also due to no fault of our own her name server addresses were wrong, needed correcting, etc. (We allow our members to register their domains with any server, then we send them the proper info so their domains are properly directed to one of our servers.)

She started calling us liars right-off-the-bad, and started directing other abuse and insults at us via email. This was indeed a shocking experience for us in that, it was coming pretty much out of nowhere. We sincerely XXXXX XXXXX help her for a full 36 hours, but in the end we had enough of her abuse and so we terminated her hosting account and immediately refunded 100% of her fees.

Okay, so without hesitation she posted in a usenet group and an on-line forum that we had called her a moron, and refused to give her a refund. The subject of her posts included the name of our business together with big caps "STAY AWAY". At first I tried to ignore this, but a search of our business at google brought up multiple STAY AWAY posts right at the top of the list, and we saw that this was starting to greatly diminish our account sign-ups.

So then in response I posted a full and complete detail of what had actually occurred in all the threads she had started under this topic. She of course replied something to the effect that we were the spawn of the devil, so to demonstrate how extraordinary the situation was, I posted a reply including excerpts from some of the correspondence which occurred during her 36 hour rant. However, I did not reveal any customer information nor email addresses, etc. but I did reveal her full first and last name. However, the vast majority of counter-argument posting was simply a statement of our position on this matter, i.e. not quoting any email messages that had been sent to us.

Okay, so now, 7 years and two months later I get a letter from an attorney representing this person with the title, "Digital Millennium Copyright Act Take Down Notice". In the letter he references exhibit A documents which he attorney did not include, and he also accused us of violating our own Privacy Policy Statement.

Our privacy policy is short, simple and to the point. The body of the policy contains statements like this, "We DO NOT and WILL NOT EVER submit your email address to a mailing list....", but at the top of the paragraph there is this, "..there is no occasion where we use the information you send us for any reason other than what you would expect as a hosting customer".

My argument here is that the letter of this policy covers account information which is submitted for the purposes of doing business for the hosted customer, and this does NOT cover such abusive correspondence which we reserve the right to use as part of our defense when our business is attacked in public. Indeed, I believe one should "expect" a business to defend itself in this way if maliciously attacked in a public forum. After all, our very livelihood was and is at stake.

When the attorney in question called a short time after we received his letter, (apparently to hassle me into taking down ALL of my, over 7 year old, posts on this matter, I asked him this question, "Then according to your argument, if a present or former customer wrote and threatened to blow up our office building, then we would not even be able to turn over the correspondence to the authorities? Right?" His response, to my utter amazement was, "Yes, according to your own privacy policy you would not be able to submit said correspondence to ANYONE in ANY situation."

By the way, I believe "they" are on the East Coast somewhere. And again, we are in California. Our TOS clearly states that the venue for any disputes would be here in our county in CA, but this person was only briefly our customer, so...

Thanks very much for any input.
Submitted: 3 years ago.
Category: Intellectual Property Law
Expert:  Law Educator, Esq. replied 3 years ago.
He is FULL OF BULL. Privacy policies do not prevent you from using the correspondence in defense of yourself from legal claims or false claims. Furthermore, her conduct constituted defamation/slander/libel as well as the common law tort of false light. She published KNOWN FALSE accusations against you and as such you had the right to defend yourself and you also have the right to demand she cease and desist her publications of false information and remove them as well. If she refuses, you can sue her.

As far as emails being subject to copyright, they do have a common law copyright to the author, but that goes to publication, it has nothing to do with you suing and using them to prove her defamation. Additionally, if you use excerpts for editorial commentary, then it also falls under the Fair Use Act. It seems like there is something wrong with this woman and you may want to consider using your own attorney to send her a cease and desist for slander/libel and false light and tell her you will sue her for those torts if she does not stop making false claims. The law cuts both ways.


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Customer: replied 3 years ago.
Thanks very very much. Seems like there would also be some kind of statute of limitations involved, as again, all the threads under discussion are more than 7 years old.

I understand what you are offering is not "legal advice" on this matter. That said, seeing as how these STAY AWAY posts are plenty buried just for the fact that they are so old, the posts no longer bother us. But I think they bother her, as her last name is XXXXX XXXXX and I think it may be foiling a career search on her behalf or something to that effect.

I don't really mind working with her to take down the entire threads, and her attorney seems to imply that this is the intention. But I don't want to get tricked into removing just my side of the story... period.

Aaaugh! This is taking up way to much time and worry. I really want to just move on and do what I need to do for my biz.

Just as off-the-cuff advice, which I would of course never hold you to in a million years, but sir, What would you do if you were me?

A - Retain an attorney.
B - Forget about the whole thing.
C - Work with them to take down the posts.

Thanks, XXXXX XXXXX I am going to accept your answer, and I thank you very much for what you have offered so far.
Expert:  Law Educator, Esq. replied 3 years ago.
If the posts are still up then the violation is ongoing so the statute of limitations is not really an issue. As long as her defaming posts are up you can insist on their removal as they are known false statements.

I would get an attorney and write a cease and desist letter to her as well and mutually agree to remove her posts and yours.
Law Educator, Esq., Lawyer
Satisfied Customers: 91096
Experience: Attorney practicing all aspects of copyright/trademark law
Law Educator, Esq. and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi again PaulMJD. Thanks again for your help the other day.

I am finding that the attorneys in our area are quite expensive. So I am wondering how much you might charge for sending the cease and desist letter for us. If this sounds like something you might want to do for us, please just contact me directly:
XXXXX@XXXXXX.XXX

By the way - The opposing attorney seems willing to work with us to take down the posts, and is asking for a list of the posts that we would like his client to remove. Other than having a bizzare argument with him on the phone one day (he keeps calling us), I have not offered any formal response as of yet.

Thanks much,
-- Joseph Maas
Expert:  Law Educator, Esq. replied 3 years ago.
I am sorry, we cannot represent anyone from this site, but an IP attorney is about $300+ an hour (I am in that range somewhere for clients).

If he is calling you, then he realizes that his client is just as wrong if not more. Give him a list of what you want taken down, tell him to give you a list of what he wants removed and tell him to send you a settlement letter where you both agree that the matter is over and nobody owes anyone for anything.
Law Educator, Esq., Lawyer
Satisfied Customers: 91096
Experience: Attorney practicing all aspects of copyright/trademark law
Law Educator, Esq. and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks again.
Expert:  Law Educator, Esq. replied 3 years ago.
You can send it first class mail and follow up with a phone call to them.

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