Who to write and where.
Obviously, you cannot write anybody in the real world. Fortunately, the defendant’s website is actually owned by me, and your opponent is me, role-playing as your opponent. To be clear, you may not transmit a cease-and-desist letter to any email address except for the one I will send you via email.
What to write and how to draft it.
Based on your factual investigation, you should have an emerging theory of the case. You’ll also look for templates of cease-and-desist letters (not DMCA takedowns but C&D letters). You’ll find further examples at this page: sample DMCA takedowns and C&D letters. You may also use as a template any C&D example you find online. Take your template(s) and revise in light of your facts, relevant law, and the strategy you deem to be appropriate. Remember, you cannot rely on the language of a sample letter, which may have been drafted for a very different purpose, and might even be a badly drafted letter. You should also consider which tone to use, and how aggressively (or non-aggressively) to advocate for your client in your C&D letter. I make no warranties regarding any of the sample C&D (or DMCA) letters.
Other tips of interest:
- Choose your templates wisely, and adapt appropriately.
- Don’t proofread on screen. Print before you transmit.
- Send your C&D as a PDF attachment with a short cover email.
- Quadruple-check the email address you use before hitting “send.”
- Don’t be an IP Gorilla. Keep your tone professional and respectful, even if your opponent does not.
Follow-up negotiation.
Once you transmit your C&D to your opponent, you will get a response within a day or two, perhaps even within minutes of your response (yes, I sit at the computer in eager anticipation of your transmissions!). Each of you will get a different response, providing a different factual scenario for everyone. Some of you may hear from a man, or a woman, or a child. You may hear from your opponent’s lawyer.
Negotiate with your opponent, but keep professionalism and ethics in mind. Be careful not to give advice to your opponent, as you don’t represent them. Do not misstate the facts or the law. Do not discuss the substance of the matter with your opponent if your opponent is represented. If you have doubts about the ethics of a situation, see the Florida Bar Rules of Professional Conduct, available here. In particular, be mindful of Rules 4-1.7 (conflicts), 4-4.1 (truthfulness in statements to others), 4-4.2 (communication with person represented by counsel), 4-4.3 (dealing with unrepresented persons), 4-and 4-4.4 (respect for rights of third persons).
In negotiating, keep your tone civil and try to resolve the problem. You may continue the negotiation until you conclude that further negotiation is pointless.
Documenting your correspondence.
If you are required to produce a printed paper file, then you’ll need to print out each email separately and in full. Do not give me a single printout with all emails, because that will not include all the relevant information. Each email (with header, FROM:, TO:, SUBJECT:, and DATE:) must be printed separately. They tell a story, so please organize them in chronological order, with the oldest at the front and the newest at the end.
If you are required to produce an electronic PDF for submission to Canvas, then do not include your emails to and from the alleged infringer as I already have them in electronic form. You should, however, include in your project PDF any emails besides those that I should be aware of, such as an email in which I added facts or clarified something important that you want to remind me of. Do not assume that I will recollect ever email we exchanged as I get and send many. So don’t include emails between you and the alleged infringer; but any other pertinent ones might be included in your PDF file.
Revised Apr. 7, 2021 (link to Fla. Bar rules); Apr. 21, 2021 (updated link to Fla. Bar rules posted 4/15/21); Oct. 31, 2021 (again updating FL Bar rules to 7.23.21 version); Nov. 1, 2022 (updated Fla. Bar rules and instructions regarding documentation); Apr. 4, 2023 (same).