Cease and desist

A cease and desist letter is a document sent to an individual or business to stop allegedly illegal activity. The phrase "cease and desist" is a legal doublet, made up of two near-synonyms. The letter may warn that, if the recipient does not discontinue specified conduct, or take certain actions, by deadlines set in the letter, that party, i.e. the letter's recipient, may be sued.[1][2] When issued by a public authority, a cease and desist letter, being "a warning of impending judicial enforcement",[3] is most appropriately called a "cease and desist order".

Usage for intellectual property

Although cease and desist letters are not exclusively used in the area of intellectual property, particularly in regards to copyright infringement, such letters "are frequently utilized in disputes concerning intellectual property and represent an important feature of the intellectual property law landscape".[2] The holder of an intellectual property right such as a copyrighted work, a trademark, or a patent, may send the cease and desist letter to inform a third party "of the right holders' rights, identity, and intentions to enforce the rights". The letter may merely contain a licensing offer or may be an explicit threat of a lawsuit. A cease and desist letter often triggers licensing negotiations, and is a frequent first step towards litigation.[2]

Effects on recipients

Receiving numerous cease and desist letters may be very costly for the recipient. Each claim in the letters must be evaluated, and it should be decided whether to respond to the letters, "whether or not to obtain an attorney's opinion letter, prepare for a lawsuit, and perhaps initiate [in case of letters regarding a potential patent infringement] a search for alternatives and the development of design-around technologies".[2]

Cease and desist letters are sometimes used to intimidate recipients and can be "an effective tool used by corporations to chill the critical speech of gripe sites operators".[4] A company owning a trademark may send such letter to a gripe site operator alleging a trademark infringement, although the actual use of the trademark by the gripe site operator may fall under a fair use exception (in compliance with, in the U.S., the protection of free speech under the First Amendment).[4]

Notable cease and desist letters

2017

In 2017, a cease and desist letter sent by Netflix was noted by news outlets such as Fortune and Quartz for its humorous wording.[5]

The sign-off message broadcast by DWWX-TV (ABS-CBN Manila) before stopping all broadcasts at 7:52 pm (PST) in compliance with the NTC order because of franchise expiry on May 5, 2020.

2020

The Philippine National Telecommunications Commission issued a cease and desist letter ordering ABS-CBN to stop broadcasting on May 5, 2020, after its franchise expiry the day before (May 4, 2020). At 7:45 in the evening, ABS-CBN stopped its terrestrial broadcast. In compliance with the government order, ABS-CBN signed-off all of its radio stations and free television channels (Channel 2, DZMM, and MOR). The NTC gave ABS-CBN 10 days to explain why its assigned frequencies should not be recalled. On June 30, 2020, considering that Channel 43 was also included in the May 5, 2020 cease and desist letter issued by the NTC against ABS-CBN, the NTC and Solicitor General Jose Calida released two alias shutdown orders against Channel 43 on digital receiver ABS-CBN TV Plus and Sky Cable's nationwide satellite service Sky Direct.[6]

Donald Trump also sent a cease and desist letter to CNN asking them to retract a poll that showed him being 14 percentage points behind his opponent Joe Biden during the presidential election,[7] prompting The Atlantic to warn about such attacks on the media.[8]

See also

  • Abmahnung, the equivalent of a cease and desist letter in German and Austrian law
  • Lumen (formerly known as Chilling Effects), a collaborative archive to protect lawful online activity from legal threats such as cease and desist letters
  • ABS-CBN franchise renewal controversy, a national dispute in the Philippines regarding the ABS-CBN franchise renewal which involved a cease and desist letter
  • Clameur de haro
  • Demand letter
  • Legal threat
  • Online Copyright Infringement Liability Limitation Act
  • Strategic lawsuit against public participation (SLAPP)

References

  1. Gold, Michael Evan. An Introduction to Labor Law, p. 17 (Cornell University Press, 1998).
  2. Trimble, Marketa (2010). "Setting Foot on Enemy Ground: Cease-and-Desist Letters, DMCA Notifications and Personal Jurisdiction in Declaratory Judgment Actions". IDEA: The Intellectual Property Law Review. 50 (4): 777–830. Retrieved 2 November 2013.
  3. Lorch, Robert Stuart (1980). Democratic Process and Administrative Law. Wayne State University Press. p. 158. ISBN 9780814315132.
  4. Braswell, Rachael (2007). "Consumer Gripe Sites, Intellectual Property Law, and the Use of Cease-and-Desist Letters to Chill Protected Speech on the Internet". Fordham Intell. Prop. Media & Ent. L.J. 17 (4): 1241–1287. Retrieved 2 November 2013.
  5. Pinsker, Joe (September 21, 2017). "Netflix's 'Stranger Things' Cease-and-Desist Letter Wasn't That Cool". The Atlantic.
  6. "NTC to issue alias shutdown order vs ABS-CBN after getting SolGen advice". ABS-CBN News. June 29, 2020. Archived from the original on June 30, 2020. Retrieved July 1, 2020.
  7. Cummings, William. "Trump campaign sends CNN 'cease and desist' letter, demands it retract poll that found Biden up 14 points". USA TODAY.
  8. Solender, Andrew. "Trump Campaign Demands CNN Apologize And Retract Poll Showing Biden Up 14 Points". Forbes.
  • Chillingeffects.org—A joint project between the Electronic Frontier Foundation and several universities to monitor uses and abuses of intellectual property rights on the internet. Contains a database of cease-and-desist letters to which either senders or recipients can contribute.
  • Marti, Don (April 12, 2002). "Google Begins Making DMCA Takedowns Public". Linux Journal. Retrieved 4 May 2013.
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