I am not a lawyer, but I've received several C&Ds for various things over the decades. The first one scared me to death. The second and subsequent ones did not, because I understood what they were: just the company saying "I don't like what you're doing".
When I receive a C&D, the first thing I do is talk to my attorney and go over what the C&D is complaining about. If I think I'm doing something that could be legally risky (which does not automatically mean doing something actually wrong), then I change that. Otherwise, my attorney acknowledges that the C&D was received and I ignore it. If they really have a serious beef with what I'm doing, they need to actually sue me. I have yet to be sued.
Before we sold our fintech SaaS startup in 2015, we received a C&D from Dealogic and I thought, wow, we've made it into the big leagues! My adrenaline wore off pretty quickly though, because after our attorney sent them a defiant letter warning their London law firm to not mess with a Texas LLC, we never heard from them again. We were flying below the radar, so we just surmised some Dealogic customer had showed a Dealogic sales rep our product, and they probably carpet bomb anytime they see anyone playing anywhere near their entrenched & wildly expensive product.
Over the years, I've collected quite a few C&Ds from various projects:
- Google for creating a mention tracker I was distributing as a mac dashboard widget
- Netflix for creating a DVD barcode to Netflix queue ios app (they were trying to to antagonize their retail partners too much at the time apparently)
- Microsoft for abusing some of their early text to speech DLL's for a really crappy RSS to Audio "podcast" app (they were meant for server side telephony apps)
- LinkedIn + Salesforce for linking their data with a Chrome extension
- Hubspot for mentioning their Inbound conference and saying that my software worked with theirs
Thinking back now these are all quite old, I don't know if the companies have become more lenient or I've become more cautious.
Multiple C&D recipient here as well which upon receiving the first, as some commenters have shared, I too may have needed an underwear change while reading the legal verbiage. However as with many things in life though once you get through the initial experience the latter experiences only get easier. My personal take is I must be doing something of value if other’s lawyers are writing me threatening letters. IANAL so YMMV
It's weird to me that big tech hasn't thought about offering a financial reward with C&D's.
"We will pay you $10000 if you C&D" seems like pennies to them, much less than the cost of legal fees, a nice amount of cash for a personal project that hasn't monetized yet.
Or a job
"We will give you a job offer to work on X if you C&D your own work on X"
also seems like a great strategy. If someone has already demonstrated enough talent to be a threat to your company, it seems like it would make full sense to try to hire them.
> Or a job. "We will give you a job offer to work on X if you C&D your own work on X
I'm honestly surprised this doesn't happen more in the gaming industry with companies buying big name mods and hiring the mod writers.
I know a lot of mod writers would probably be opposed because they actually just want to make free stuff, but some would probably launch careers off of it.
At the risk of violating some rules/conventions here about generated content, I put the question to GPT4 and got some rather reasonable answers. It's enough to convince me not to do what you suggested.
----
Offering payment to an individual or entity to cease an activity they should not be engaging in can introduce several disadvantages and potential legal complexities compared to a standard cease and desist letter. Here are some considerations:
- Precedent for Payment: Offering payment for the cessation of an infringing activity could set an unwanted precedent. It suggests that compliance with the law is negotiable and can be bought, potentially encouraging the same or other parties to infringe in the future with the expectation of receiving payment to stop.
- Admission of Weakness: Offering money might be interpreted as a sign that you are not confident in the legal strength of your claim. This could embolden the infringer or weaken your position in any subsequent legal proceedings.
- Contractual Obligation: If the other party accepts the offer, it creates a contractual agreement. If the infringer accepts the payment but continues the activity, or if there's a disagreement over whether the activity has ceased, you may have to engage in contract enforcement rather than straightforward infringement litigation, which could complicate matters.
- Tax and Financial Implications: The payment could have tax implications for both parties and might also affect the financial statements of a company if either party is a business.
- Mitigation of Harm: Paying the infringer doesn't address any harm that has already occurred. A cease and desist letter often includes demands for remedies or damages for past infringement, which would not typically be covered by a simple payment to stop the activity.
- Negotiation Power: Once you've put a monetary offer on the table, it can be difficult to withdraw or reduce that offer without weakening your negotiating position.
- Legal Interpretation: The offer of payment might be interpreted by the court as an acknowledgment that the infringed party is aware that their rights are not clear-cut or may even lack merit, thereby potentially undermining the legal basis for their claim.
- Public Perception: If the offer and its acceptance become public, it might be seen as a company or individual buying their way out of a legal dispute, which could affect public perception or brand reputation.
- Binding Effect: If the offer is accepted, the agreement may prevent you from pursuing legal action for any past infringement, depending on the terms of the agreement.
> I am not a lawyer, but I've received several C&Ds for various things over the decades. The first one scared me to death.
The first time I got a letter for a trademark issue it seemed completely hostile and threatening. My lawyer said, basically, that it was no big deal and that they were in fact being pretty nice. We answered back and everything was resolved amicably. It actually turned out well because it made me realize we had not been paying enough attention and were unthinkingly referencing other brands instead of our own.
I'm going to avoid the snarky "hire an attorney" answer but once you get past that necessary first step I do have a few tips:
* get comfortable reading legal documents, this will allow you to have more
intelligent conversations with your attorney
* don't let your attorney make your business decisions, one of their jobs is to
point out risks, one of your jobs (owner/ceo/leadership) is to figure out how
to mitigate risk but that is not the same thing as avoiding all risks
* learn to draft legalese, it will help minimize your attorney's billable hours
My main piece of advice is to get an attorney, preferably one who has experience in your industry.
They know more about how this stuff really works than you or I ever will, and you won't be able to judge what risk you're really taking without that knowledge.
But, if I were operating "without a net" like that (which I would never do!), and I really felt that the C&D was about something I wasn't doing wrong, I'd be inclined to ignore it. There's chance that you'll end up being sued, though, so you should be prepared for that possibility. That means you'll need an attorney anyway, and it will cost more than consulting one about a C&D to begin with.
You are entitled to sue to get a court to state that you have the legal right to do something. Probably overkill, but I bet it would get a surprised pikachu face from the C&D sending company.
Now whether it's a good idea to sue without an attorney, I have no idea. I genuinely don't.
The premise of this article is that you somehow have to respond to it which is nuts. If the letter is ridiculous (e.g. citing terms of service you did not sign) then you're better off to ignore it and not waste money on legal fees. Also everyone who suggests getting a lawyer has probably not had to hire one in the past. With very few exceptions they will tell you it "depends" and maybe give you a few legal terms you can google. If you are lucky a good lawyer will give you their opinion on the merits of the letter but many will be so guarded it's not useful.
A C&D costs the sender almost nothing and is not the same as actually being sued. Very rarely are they serious enough to actually file something. If that does happen you should get a lawyer at that point, but doing it before is just a waste of money.
If you have not received a C&D before then the reason to consult with an attorney is to evaluate the risk. A lot of legal trouble arises from assuming you understand something when you actually don't. (Ask me how I know.)
> If you have not received a C&D before then the reason to consult with an attorney is to evaluate the risk.
The poster you are responding to just explained that most lawyers are too guarded to offer a useful evaluation of the risk, thus rendering their advice useless or low value.
Not sure we read the same article. The first point under "Decide how to respond" is "1. Ignore" (although it suggests this is risky if ignore includes continuing what lead to the C&D)
Used to periodically get a c&d email from FB lawyers for some harmless software I published. Always completely ignored it, not even responding to acknowledge receipt. It eventually stopped. I figure they gave up and focused their efforts on targets who showed they would be responsive to threats. It was 100% bullying.
Even acknowledging receipt gives them a lot of power.
Remember that they probably have a list of hundreds or thousands of C&D's to send, and if you don't respond they would probably need to file a john doe lawsuit to get your identity from your ISP, and it's unlikely that all that effort is worth it to them.
It would be funny if legal teams at huge companies have OKRs and evaluations. “You hit your target of 250 C&Ds this quarter great work”. Justifying your paycheck is scarier when thinking about the legal dept.
It is worth pointing out that FB has a long history of litigating this issue, from Power Ventures, to BrandTotal, to Octoparse, to Voyager Labs and more. And they have about 80-90% track record of success. Obviously, they send C&Ds more often than they file litigation. But to act as if this is a completely idle threat is naive.
As an attorney who has experience responding to Meta’s “anti-scraping team,” I think there might be more opportunities for amicable resolutions than you might expect (depending on the specifics of what you’re doing, of course). Meta is not oblivious to the fact that they’re under significant social and regulatory scrutiny. They sometimes play nice if you’re willing to accommodate certain considerations.
Either way, my recommendation would be to find an attorney with industry-specific expertise to address the norms of your industry. C&Ds range from idle shake downs to definite pre-cursors to litigation. Without industry-specific knowledge, it’s hard to know which is which.
Is there existing case law around browser extensions that only alter the presentation of a web page on the client machine? You know, things like adblockers or extensions that alter a specific site?
Would you be willing to share some stories regarding particularly FB reacting to someone scraping their data? Are they very stingy? Would they bother with someone non-US based?
I can't share client-specific stories because that's protected by AC privilege. But I think the recipients of these letters sometimes have more potential to negotiate than they realize.
Given the acknowledgement that cease-and-desist letters from Big Tech may be for the purpose of bullying, false, and fully unenforceable, I'm disappointed that the possibility of referring the sender to 'Arkell v. Pressdram' [0] didn't even get mentioned.
Love it - will add a section with more innovative approaches like this
e.g. was just chatting with a fellow cease-and-desist receiver, Mohammed Shah, who finds comfort in using a different misspelling for the name of the lawyer harassing him, every time he replies
Private Eye also does this, and not only in legal correspondence.
> The magazine often deliberately misspells the names of certain organisations, such as "Crapita" for the outsourcing company Capita, "Carter-Fuck" for the law firm Carter-Ruck, and "The Grauniad" for The Guardian (the latter a reference to the newspaper's frequent typos in its days as The Manchester Guardian). Certain individuals may be referred to by another name, for example, Piers Morgan as "Piers Moron", Richard Branson as "Beardie", Rupert Murdoch as the "Dirty Digger", and Queen Elizabeth II and King Charles III as "Brenda" and "Brian", respectively.[0]
Very good post, also kind of depressing how big companies can easily squash the little guys
> It doesn’t matter if you’re right. It matters if you have money, time, and willpower to go to court
There are some exceptions to this, but for probably 99% of cases, this is true
I’ve personally been on the receiving end of a litigious situation, facing a very wealthy individual. It did not go well for me, and had to swallow my pride/ego. This last bit might be the hardest thing to do
It is one thing to rationally know that the world is not fair. But when it happens to you, oh man, it’s not easy at all to take it
This is why shady tow companies persist. They have more resources than their victims, so it's low risk to behave in super shady ways. i.e. towing cars which they can't legally be towing. Happens all the time.
Interesting topic and article. I agree with the author, that it's useful to read this information and keep it in the back of your head in case you ever need it, before you actually find yourself in a stressful situation like this.
But one thing I don't understand every time there's a C&D story is why leave a paper trail to send the C&D to in the first place if doing something in a gray area? If I was creating some piece of software that is designed to give the middle finger to the man or facebook or whoever and/or benefit the public, I would just release the source anonymously on some random forum and it can't be stopped. Why create an official github repo with your real email and everything just to take credit?
To clarify, I mean cases like youtube vanced or the recent valve/nintendo portal mod issue, where its obvious some company might not like it, but I don't see why the projects couldn't have continued anyway if the authors didn't expose themselves to litigation. Or am I being naive about this?
Just to verify, I just made a Github account using a throwaway email I got by googling "10 minute email". So making a Github account without a paper trail is trivial.
I got multiple C&Ds for publishing public information, provided directly from the US government as giant CSV files (PPP loan data, provided under FOIA), through a web interface that made it easy to search loan recipients and analyze distribution of COVID relief funds.
Many of the C&Ds came from people who were later indicted for defrauding the government, some of them in hilariously inept ways.
Absolutely - I created the website pppwatch.com, which currently has searchable aggregates of the data from the official SBA data source [1]. The individual loan search is down right now, not because of any C&D letters, but simply to save some money on the search cluster while I have been revamping the site in my free time with some new analysis.
Readit News
I am not a lawyer, but I've received several C&Ds for various things over the decades. The first one scared me to death. The second and subsequent ones did not, because I understood what they were: just the company saying "I don't like what you're doing".
When I receive a C&D, the first thing I do is talk to my attorney and go over what the C&D is complaining about. If I think I'm doing something that could be legally risky (which does not automatically mean doing something actually wrong), then I change that. Otherwise, my attorney acknowledges that the C&D was received and I ignore it. If they really have a serious beef with what I'm doing, they need to actually sue me. I have yet to be sued.
- Google for creating a mention tracker I was distributing as a mac dashboard widget
- Netflix for creating a DVD barcode to Netflix queue ios app (they were trying to to antagonize their retail partners too much at the time apparently)
- Microsoft for abusing some of their early text to speech DLL's for a really crappy RSS to Audio "podcast" app (they were meant for server side telephony apps)
- LinkedIn + Salesforce for linking their data with a Chrome extension
- Hubspot for mentioning their Inbound conference and saying that my software worked with theirs
Thinking back now these are all quite old, I don't know if the companies have become more lenient or I've become more cautious.
Just for clarification, do you mean soiling your underwear or dealing with a C&D?
"We will pay you $10000 if you C&D" seems like pennies to them, much less than the cost of legal fees, a nice amount of cash for a personal project that hasn't monetized yet.
Or a job
"We will give you a job offer to work on X if you C&D your own work on X"
also seems like a great strategy. If someone has already demonstrated enough talent to be a threat to your company, it seems like it would make full sense to try to hire them.
I'm honestly surprised this doesn't happen more in the gaming industry with companies buying big name mods and hiring the mod writers.
I know a lot of mod writers would probably be opposed because they actually just want to make free stuff, but some would probably launch careers off of it.
That would be incentivizing bad behavior!
There is already a reward — they’re giving you a chance to fix their problem for free before they take you to court and sue you for damages.
----
Offering payment to an individual or entity to cease an activity they should not be engaging in can introduce several disadvantages and potential legal complexities compared to a standard cease and desist letter. Here are some considerations:
- Precedent for Payment: Offering payment for the cessation of an infringing activity could set an unwanted precedent. It suggests that compliance with the law is negotiable and can be bought, potentially encouraging the same or other parties to infringe in the future with the expectation of receiving payment to stop.
- Admission of Weakness: Offering money might be interpreted as a sign that you are not confident in the legal strength of your claim. This could embolden the infringer or weaken your position in any subsequent legal proceedings.
- Contractual Obligation: If the other party accepts the offer, it creates a contractual agreement. If the infringer accepts the payment but continues the activity, or if there's a disagreement over whether the activity has ceased, you may have to engage in contract enforcement rather than straightforward infringement litigation, which could complicate matters.
- Tax and Financial Implications: The payment could have tax implications for both parties and might also affect the financial statements of a company if either party is a business.
- Mitigation of Harm: Paying the infringer doesn't address any harm that has already occurred. A cease and desist letter often includes demands for remedies or damages for past infringement, which would not typically be covered by a simple payment to stop the activity.
- Negotiation Power: Once you've put a monetary offer on the table, it can be difficult to withdraw or reduce that offer without weakening your negotiating position.
- Legal Interpretation: The offer of payment might be interpreted by the court as an acknowledgment that the infringed party is aware that their rights are not clear-cut or may even lack merit, thereby potentially undermining the legal basis for their claim.
- Public Perception: If the offer and its acceptance become public, it might be seen as a company or individual buying their way out of a legal dispute, which could affect public perception or brand reputation.
- Binding Effect: If the offer is accepted, the agreement may prevent you from pursuing legal action for any past infringement, depending on the terms of the agreement.
The first time I got a letter for a trademark issue it seemed completely hostile and threatening. My lawyer said, basically, that it was no big deal and that they were in fact being pretty nice. We answered back and everything was resolved amicably. It actually turned out well because it made me realize we had not been paying enough attention and were unthinkingly referencing other brands instead of our own.
They know more about how this stuff really works than you or I ever will, and you won't be able to judge what risk you're really taking without that knowledge.
But, if I were operating "without a net" like that (which I would never do!), and I really felt that the C&D was about something I wasn't doing wrong, I'd be inclined to ignore it. There's chance that you'll end up being sued, though, so you should be prepared for that possibility. That means you'll need an attorney anyway, and it will cost more than consulting one about a C&D to begin with.
Now whether it's a good idea to sue without an attorney, I have no idea. I genuinely don't.
A C&D costs the sender almost nothing and is not the same as actually being sued. Very rarely are they serious enough to actually file something. If that does happen you should get a lawyer at that point, but doing it before is just a waste of money.
The poster you are responding to just explained that most lawyers are too guarded to offer a useful evaluation of the risk, thus rendering their advice useless or low value.
Remember that they probably have a list of hundreds or thousands of C&D's to send, and if you don't respond they would probably need to file a john doe lawsuit to get your identity from your ISP, and it's unlikely that all that effort is worth it to them.
Either way, my recommendation would be to find an attorney with industry-specific expertise to address the norms of your industry. C&Ds range from idle shake downs to definite pre-cursors to litigation. Without industry-specific knowledge, it’s hard to know which is which.
[0] https://en.wikipedia.org/wiki/Private_Eye#Libel_cases
e.g. was just chatting with a fellow cease-and-desist receiver, Mohammed Shah, who finds comfort in using a different misspelling for the name of the lawyer harassing him, every time he replies
Great for morale
> The magazine often deliberately misspells the names of certain organisations, such as "Crapita" for the outsourcing company Capita, "Carter-Fuck" for the law firm Carter-Ruck, and "The Grauniad" for The Guardian (the latter a reference to the newspaper's frequent typos in its days as The Manchester Guardian). Certain individuals may be referred to by another name, for example, Piers Morgan as "Piers Moron", Richard Branson as "Beardie", Rupert Murdoch as the "Dirty Digger", and Queen Elizabeth II and King Charles III as "Brenda" and "Brian", respectively.[0]
[0] https://en.wikipedia.org/wiki/Private_Eye#In-jokes
> It doesn’t matter if you’re right. It matters if you have money, time, and willpower to go to court
There are some exceptions to this, but for probably 99% of cases, this is true
I’ve personally been on the receiving end of a litigious situation, facing a very wealthy individual. It did not go well for me, and had to swallow my pride/ego. This last bit might be the hardest thing to do
It is one thing to rationally know that the world is not fair. But when it happens to you, oh man, it’s not easy at all to take it
But one thing I don't understand every time there's a C&D story is why leave a paper trail to send the C&D to in the first place if doing something in a gray area? If I was creating some piece of software that is designed to give the middle finger to the man or facebook or whoever and/or benefit the public, I would just release the source anonymously on some random forum and it can't be stopped. Why create an official github repo with your real email and everything just to take credit?
To clarify, I mean cases like youtube vanced or the recent valve/nintendo portal mod issue, where its obvious some company might not like it, but I don't see why the projects couldn't have continued anyway if the authors didn't expose themselves to litigation. Or am I being naive about this?
People who get C&Ds must want to be known.
Many of the C&Ds came from people who were later indicted for defrauding the government, some of them in hilariously inept ways.
1. https://www.sba.gov/funding-programs/loans/covid-19-relief-o...