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'Cease and Desist!':
a guide to assessing & responding to cease and desist letters

Step 1. Critical evaluation of the letter.

Three key facts are essential to evaluating any cease and desist letter:

1. Who is sending the letter?
2. What is he or she demanding?
3. What is the complaint about?

Who's sending the letter?

First, who is sending the letter? An individual? A large corporation? Is the sender or rightsholder a person or company that the recipient recognizes? Perhaps the rightsholder has a reputation for trying to intimidate people or extort money from them. On the other hand, the rightsholder may be aggressive about enforcing its rights, but not known for sending threatening letters based on weak IP claims. What are the resources available to the rightsholder, should it choose to pursue its claim beyond the initial cease and desist letter?

If the rightsholder and the recipient have had a previous relationship, or are business competitors, there may be a greater likelihood that the cease and desist letter is not just an empty threat. For example, people often get into disputes with co-workers, former employers, or others with whom they've had business relationships. In such a situation, the recipient should probably seek the advice of an attorney right away. These disputes may be governed by state contract laws, in addition to the work-for-hire doctrine and other aspects of copyright law.

One might also measure how serious the rightsholder is by seeing who actually wrote and sent the letter. Is it from the rightsholder itself, its in-house legal counsel, or an outside attorney? Or is it from another agent of the rightsholder, such as a publicist or rights-enforcement company? Letters from law firms don't necessarily mean that the rightsholder will be prepared to file a lawsuit, but at the least, they suggest that the rightsholder has some financial resources available to pay legal fees.

Is the sender targeting the recipient specifically? Or is the target just one among many? A cease and desist letter may be targeted at one individual, or it might be part of a larger campaign by the sender. Some entities and individuals have become known for aggressive, or even over-aggressive, assertion of IP rights. A check of Chilling Effects and other sites may give information about whether the complainant is a repeat sender.

What is the sender demanding?

Next, what is the sender asking the recipient to do? Is the sender telling the recipient to contact him or her, to remove a publication from the web, or to pay money? Is the sender threatening to communicate with the recipient's ISP or business partner? While a sender's rights are not necessarily stronger just because he or she makes such threats, in practice a complaint will probably produce faster action from a private party such as an ISP than from a court.

Threats of further action should be taken seriously, of course, even if they turn out not to be sincere. "We are reserving our rights" is formulaic, but language such as "prepared to take action" might (or might not) indicate greater interest in pursuing the claim. "We are prepared to file a complaint in the district court of such-and-such state" suggests a greater level of preparedness and willingness to sue.

Has the sender assigned any timetables to its demands? While IP owners may or may not have a right to demand action on a particular timetable, or at all, a date may suggest that they plan further action after that date.

What is the complaint about?

Finally, what is the complaint really about? What is the context, or larger issue, behind the letter? For instance, the underlying issue may be that the sender feels upset about the content of the target's work, because it is a satire, casts the sender in an unflattering light, or discloses something private or secret. Or the underlying issue may be that the sender simply wants a credit or a licensing fee. Understanding the sender's motivations can help determine what responses will be most effective.

An examination of the letter can indicate whether it was automatically generated, a standard form letter, or detailed and closely tailored to the particular facts. Chilling Effects has many cease and desist letters to look at for comparison. A detailed and specific letter may indicate that the sender is taking the issue seriously. On the other hand, an aggressive tone by itself does not necessarily mean that the claims are more legitimate, or that the rightsholder is more serious about pursuing them.

Next Step: Understanding the legal claims & issues

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