Cease & desist letters are a funny business. We have received them before, back in the days when we blogged at Palingates, and they always failed to reach their goals. When they are aimed to "plug a leak", they usually only increase the leak by giving it more publicity.
Nevertheless, Frank Bailey, Ken Morris and Jeanne Devon decided to send the following cease & desist letter to Politicalgates:
BONFANTE STEINBECK, A PROFESSIONAL LAW CORPORATION
9190 OLYMPIC BLVD. #400
BEVERLY HILLS, CALIFORNIA 90212
February 20, 2011
Ken Morris, Frank Bailey and Jeanne Devon
9190 Olympic Blvd. #400
Beverly Hills, CA 90212
Attn: Publisher / Legal Counsel
SENT VIA: EMAIL & OVERNIGHT DELIVERY
RE: COPYRIGHT INFRINGEMENT
I write on behalf of Ken Morris, Frank Bailey and Jeanne Devon (collectively, the “Copyright Owners”). The Copyright Owners are co-owners of the copyright in the unpublished manuscript entitled “Blind Allegiance to Sarah Palin: A Memoir of our Tumultuous Years” (the “Work”).
On February 18, 2011 you were the recipient of an unlawfully distributed version of the Work. Although you knew that the Work was unlawfully distributed to you, that same day you posted on your website (the “Site”) certain blogs whereby you described each section of the Work in great detail. Most shocking was the fact that you felt free to quote liberally from the Work and reproduce large portions verbatim. As you are well aware, simply quoting copyrighted material does not alleviate you from your duty to comply with copyright laws.
The Copyright Owners hereby demand that you cease and desist from displaying and distributing any portion of the Work on the Site and any other website under your ownership, control or influence, and refrain from any further display or distribution of any portion of the Work.
Additionally, the Copyright Owners demand that you provide exact details as to how you obtained unlawfully distributed copies of the Work and which parties (including names and contact information) sent you the Work. You have until February 23, 2011 to provide us with written assurances that you will immediately comply with the Copyright Owners’ demands.
Thereafter, we expect you to act promptly and in good faith with our demands.
This letter is not intended as, and may not be construed to be, a complete recitation of the facts or circumstances connected with this matter. Furthermore, any statement contained in this letter is not intended as, and may not be construed to be, a waiver or relinquishment of any of the Copyright Owners’ rights or remedies under law, all of which the Copyright Owners hereby expressly reserve.
Please feel free to contact me at (310) 776-0865 or via email at email@example.com
to discuss this matter further.
Dean M. Steinbeck
Therefore, we inevitably have to give a reply.
Here it is, also communicated today to the lawyers via email:
Thank you very much for the message.
We are saddened to have received such an aggressive letter from people who are on our side in the political fight against Sarah Palin. Fortunately for us, your cease & desist letter has little merit.
When I first read your letter, I had the impression that you were talking about another blog or website. We have neither
"posted on our website certain blogs whereby you described each section of the Work in great detail"
nor did we feel
"free to quote liberally from the Work and reproduce large portions verbatim."
Where did you read that? Certainly not at Politicalgates.
In our post from February 18, 2011, "Sarah Palin teases "Long Island Association" that she is still thinking about running in 2012 - PLUS: Book of former Palin-aide Frank Bailey leaked!" we quoted from several press reports about the book, for example from the Anchorage Daily News, Alaska Dispatch and KTUU. Our post neither describes "each section of the work in great detail" nor does it "quote liberally from the work and reproduce large portions verbatim."
Media outlets like the Anchorage Daily News published much larger portions of the book, as did several other media outlets or blogs, for example today Andrew Halcro
or Andrew Sullivan on the Daily Dish.
What we published in the forementioned post were short excerpts, exactly in the way they were quoted in other media outlets. These excerpts did in no way represent a large or substantial portion of the book. At this point, we were not in possession of a copy of the manuscript, and we relied on news reports like everybody else. When we quoted the news reports, we did so with the good intention of informing our readers about this important book.
We received copies of the manuscript one day later, on February 19, 2011, and they were sent to us by not one, but several sources, which we are under no obligation to reveal, and will never do so.
After we received copies of the book on February 19, 2011, we published the post "Frank Bailey's book "Blind Allegiance to Sarah Palin": Sarah fights in April 2008 against rumors that she is not pregnant - but has no evidence!", in which we quoted from a section of the book which the authors themselves consider to be a rather insignificant part of the book, basically a non-issue: The part in which they write about Sarah Palin's pregnancy with Trig.
We took great care and quoted from the book only very few sentences which were necessary to prove our point. In fact, we quoted 77 words verbatim. The book itself contains more than 133.000 words. The rest of the quotes were from emails that were sent by other people to Frank Bailey, for example the emails from Sarah Palin. The authors have no copyright over these emails. In fact, it is our view that the authors themselves might run into severe legal difficulties if they attempt to publish the book in its current form, which includes a very large number of emails. The legal situation regarding the attempt to publish emails of other people which were regarded to be confidential is not clear at all and might in the end not turn out in favor of your clients, if the authors of the emails decide to start a legal challenge. The leak of the book actually ensured that such a legal challenge, be it with merit or without, would now be useless, as the content of the emails cannot be kept secret anymore.
Therefore we did your clients nothing but a favor with this post. We gave the book free publicity, and we helped the cause to get the book published in an uncensored form. Our actions were covered by fair-use rules, the limitations of which we strictly observed. Politicalgates is a non-commercial, educational political citizen's blog, and we published these tiny excerpts in good faith, along with our own extensive commentary and we are fully supportive of the authors intents, which we also made clear in our post.
The aggressive tone of your cease & desist letter is also surprising giving the fact that the obvious carelessness of the agents of the authors was the main cause for the leak. We are in possession of a letter by the Carol Mann Agency from February 17, 2011, in which Carol Mann, in attempt to market the book, not only revealed the main content of the book in the letter itself, but also attached the full copy of the book with the email. The agents should have known that such an explosive and powerful book should have been handled with more care, confidentiality and secrecy. The legal term for this behavior is "contributory negligence", I believe. The fact that we were sent a copy of the book on February 19, 2011, not only by one, but several sources confirms that the handling of this highly confidential material was done unprofessionally. The leak was preventable, it should never have happened.
We do hope that the book will be a huge success, as we also expressed in our previous posts. As I mentioned, all we did was give it more free publicity, and we are full of praise for the efforts of the authors. We do hope that the book will be published uncensored. We highly appreciate the work your clients have done. It is our view that the leak ensured that it will be possible to publish the book in its original form in the end, therefore it clearly was a blessing in disguise.
Out of courtesy, as a gesture of good will, we have deleted some excerpts from the book in our post "Sarah Palin teases "Long Island Association" that she is still thinking about running in 2012 - PLUS: Book of former Palin-aide Frank Bailey leaked!", which were excerpts, as I mentioned above, which were previously quoted by other media outlets.
As it is apparently not appreciated by the authors, we will cease to continue to publish further excerpts from the book, and we will not pass the book on. We wish the authors all the best and lots of success.