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INFORMATION & RESOURCES FOR FREE EXPRESSION
'Cease and Desist!':
a guide to assessing & responding to
cease and desist letters
Step 4. Assess options and take action.
Just as the sender of a cease and desist letter has various options, so does the recipient. A recipient may choose to acquiesce to the sender's demands; propose a compromise; ignore the demands and wait to see what the sender does; or proactively resist the sender's demands and launch a counter-campaign.
Below we briefly discuss some things one might do in response to a cease and desist letter. Although acquiescence comes first in this list, that does not suggest that that acquiescence is the best solution in any particular situation. Rather, cease and desist recipients should understand their own rights, and respond accordingly. Fair use and other free expression safeguards in IP law can atrophy if they are not understood and used.
Before taking action, the recipient may wish to consult an attorney to learn how the law applies to his particular situation, and about the likely risks of contesting the rightsholder's claims.
Acquiesce. Someone whose material has been targeted may decide to acquiesce and let it go, either because he concludes that his work may in fact infringe the sender's copyright, or because he feels that it's not worth the effort to fight it. He would then follow up with the complainant and take down or modify the material, pay a licensing fee, or do whatever else that might be requested. Acquiescence may not be the end of the matter, though. While acquiescence might mollify the rightsholder, she may still decide to sue for damages or harm she feels has already occurred.
Propose a compromise or settlement. It may be advantageous to propose a compromise in some situations. For instance, the cease and desist recipient could offer to clarify language on her website that might create inadvertent confusion. Or she could offer to give credit for the original work, or pay a licensing fee to use it. A recipient need not agree that her conduct was infringing in order to make such an offer. Many, perhaps most, courts would look at such compromises as good faith attempts to avoid litigation, not as admissions that the original conduct was infringing. It may be helpful, however, to consult with an attorney to avoid any appearance of admitting to wrong-doing.
Wait and see. If evaluation suggests that the letter recipient is within his rights, or for some reason the sender is unlikely to win a lawsuit, or sue at all, then it may be appropriate to adopt a wait-and-see approach. If the recipient ignores the letter, or sends a response rejecting the sender's demands, it is up to the sender to pursue the matter. In most instances, the recipient will have an opportunity to respond to any action that the sender might initiate. However, DMCA § 512 takedown notices will be acted upon before the target has any opportunity to respond.
Take the initiative. People targeted by cease and desist senders may decide to take a proactive approach. Sending a letter in response to a cease and desist notice may be very effective. A response letter provides the opportunity for the recipient to effectively deny the allegations, correct the facts, or defend the actions on principle.
Cease and desist notice recipients may also take legal action themselves, if appropriate. If the sender has made an actual threat to sue, then the target can file a "declaratory judgment" lawsuit — asking a judge to rule that the use is fair and lawful. If the sender has a bad motive for sending their notice, such as trying to stifle politically important speech, some states provide "anti-SLAPP" procedures that may be applicable. If a sender's claims are harassing or abusive, the target may be able to seek an injunction or damages for harassment, abuse of legal process, or intentional or negligent harm. Or a lawsuit may simply be a way to resolve a genuine legal dispute, with IP or other claims on both sides.
File a counternotice with a third party. Although counternotices are usually associated with the DMCA § 512 takedown process, there may be other instances where it is appropriate for the recipient of a cease and desist letter to notify a third party that she doesn't believe her materials violate other rights.
- 'Take It Down!': A Guide to Understanding & Responding to DMCA § 512 Takedown Notices
- DMCA § 512(g) Counternotice Generator at Chilling Effects
- Browse DMCA § 512(g) counternotices at Chilling Effects
Find more help. Anybody who receives a cease and desist letter may wish to talk with an attorney who has expertise in the field. Recipients who feel they have a strong or sympathetic case may wish to contact the media to draw attention to the situation. Civil liberties organizations such as the Electronic Frontier Foundation (EFF) may be able to provide legal help or assistance with advocacy.
Document the process. Keeping good records is an invaluable part of any legal process, including cease and desist interactions. A letter recipient should document everything that has happened. This includes listing how and when he began developing his work; when he posted it or made it available to others; how he distributed it; how much it cost and whether or not any profits have been made from it. He should also keep copies of relevant correspondence. Having this material will also help attorneys assess the matter more quickly. But be aware that if the matter ends up in court, such documentation may be subject to "discovery" by the other side.
Some people choose to publicize cease and desist notices on their website. They may do this as part of a media strategy, to draw attention to what they see as a wrongful or abusive claim, or just to explain why they have taken the information down. Some senders may try to dissuade recipients from publicizing the action, by claiming in the letter that it is confidential, privileged, or protected by copyright. However, Chilling Effects has posted thousands of such letters and notices, as have many online activists who thought it was in the public interest to alert others to the types of claims made against them.
Submit notice to the Chilling Effects Clearinghouse. We encourage everyone to submit their notices to the Chilling Effects clearinghouse. Chilling Effects collects cease and desist letters for two major purposes. First, publishing and annotating letters and notices for public viewing enables other recipients to compare and learn about the law and the ways it is applied. Private information is generally redacted, and notice recipients can edit out any other private or identifying information before submitting it to Chilling Effects. Submission to the Chilling Effects Clearinghouse will also help users identify repeat senders.
Second, since cease and desist letters are sent by private mail and not usually publicly filed in a court, there is no way to know for sure whether their use is increasing or decreasing, what they are being sent for, or if the process is being abused. By contributing this correspondence to a clearinghouse, attorneys and researchers can look at the senders, recipients, and types of claims made, to get a better sense of whether the law is working, or whether it's dysfunctional. Contributing to Chilling Effects may help reform bad laws, or prevent abuses in the future.
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© and first publication: June 15, 2006
Last modified: June 11 2007.