(Untitled)

[cfd_samurai]

I am regularly amazed at the stuff that The Smoking Gun posts on their site. I take no side in the debate over the veracity of A Million Little Pieces, but I find it supremely amusing that they posted this letter. I don't know if one party in a potential lawsuit can require the opposing party to keep such communications confidential. The letter,

Comments

How can I resist?

[joelreed]

I stumbled across this story yesterday via CNN, and wound up at the attorney's letter on TSG before I had a really good idea of what was going on. When I noted the confidentiality notice, I snickered, and when I got to the copyright notice, I actually laughed out loud. As to the first part, no, attorneys (or anyone, really) cannot unilaterally impose upon you a duty to maintain confidentiality. Typically, duties of confidentiality arise from a pre-existing contractual relationship (usually of an employment nature), but regardless, there must be some sort of agreement to impose and maintain this duty. You can't just tell other parties to shut up and make it stick. (Unless you are a judge or you can get a judge to order it. Unfortunately for the sending law firm, there is no pending lawsuit presenting, and therefore no judge involved. Yet.)

As to the second part, I took copyright law my last semester, and it was an 8:30 class, so I didn't pay real careful attention. But the TSG is a news organization of sorts, reporting on a story that has public interest (at least to Oprah fans?). The entire contents of the letter are newsworthy, because they reflect the lengths to which this author is going to hush up these accusations in a "me thinks thou dost protest too much" manner. Additionally, this is not a "creative" work per se (although it certainly reflects some creativity on the part of the authors in failed intimidation techniques), and unlikely to be a huge moneymaker for the law firm if published. All these together combine to make you correct, Samurai: a very win-able fair use case.

Overall, I would also like to add that I am astounded by the controversy and the publisher's decision to issue refunds. I mean, if my new toaster doesn't toast, I expect a refund. I bought the toaster to toast, and it didn't toast, and I want my money back. But is this like buying a book? Why did people buy this (probably crappy) memoir in the first place? 1) They wanted to be cool like Oprah and/or 2) presumably, they hoped to be entertained or informed by the book itself. One could argue that they were less "informed" by the book if it includes lies, but probably only a negligible amount, since the possible lies were specific knowledge about one specific person upon whom no one is likely to base scientific theories or pattern a religion. But less entertained? Unlikely. So these people who were slightly less informed and no less entertained by the book now that they believe part of it to be false can have their money back AFTER they have fully utilized the book, i.e., read it? Astounding. And what about works of fiction which are presumed to be untrue, and then later discovered to be partially or fully autobiographical or at least based in fact? Haven't the readers there been equally deceived? I'm employing a fact checker immediately to go through all the books I've bought that I haven't liked and am sorry I paid for. I want my money back.

Re: How can I resist?

[cfd_samurai]

I think you'd have a hard time proving that the elements of this letter are unprotectable for lack of creativity in that at least its organizational structure shows that it's not a computer generated form letter and therefore required the author's creative (even if technically informed) mental processes in order to create (see computer software, vis-a-vis protectable and unprotectable elements).

I think the reason that the publisher is offering refunds is not because there was a public outcry (for refunds), but because people bought this book because Oprah told them to. So, the argument goes, lots of people bought the book that might not have otherwise, and therefore, the publisher has to hold itself to a higer standard of some sort. This is especially true if Oprah was paid to hawk the book (I have no knowledge one way or the other).