Bloghercon legal tips: "what you can get away with"
We're live blogging at Boghercon. Bloghercon's panel on legal issues discusses what you need to know to blog. Moderator Jennifer Collins covers the issues with attorneys Lauren Gelman and Wendy Seltzer.
Jennifer Collins is the content director for ALM's law.com site. Lauren Gelman is the associate director of Stanford Law School's Center for Internet and Society. Wendy Seltzer is an attorney with the Electronic Frontier Foundation and is going to be teaching at Brooklyn Law School.
Jennifer Collins made the obligatory disclaimer about the panel not providing legal advice. She is asking the audience to provide case studies to discuss the issues.
One question from the audience is what sort of liability attaches to third-party comments posted on servers owned by the company?
Wendy is answering this by first defining the overall issues that come up with blogs. Substantive law includes intellectual property law and defamation law. When companies host this information, you have questions of legal liability and public relations exposure. On the legal side, there’s an important protection in CDA Section 230, which gives immunity to the host of online content for defamation liability. This does not protect against criminal liability or intellectual property liability, however.
If it involved copyright infringement, you would have to look at secondary copyright liability, and DMCA safe harbor protection.
Jennifer asked the question how much risk are you assuming in this regard?
Wendy answered that usually you won’t get sued, but rather you might receive a cease and desist letter to take the content down. The host who is not encouraging the infringing content should not be liable if they take the content down when asked. You don’t have to refrain from hosting material – when confronted with a specific problem you should seek legal counsel as to whether to remove the content or resist the request.
Lauren says the rules while blogging are no different from the off-line world. Saying someone is a crook is no different from doing that off-line. The difference is that now publishing these things to the world in your blog, there is more ire that can be raised. These legal rules should not silence you, but you should exercise the same cautions that you would exercise in the real world.
A question was raised as to whether there is copyright infringement by recording live performances of musicians.
The answer was that you should get permissions before doing this, because of potential copyright infringement issues. These performers may want to get their work out there, but you would hate to try to do the right thing and end up with a lawsuit.
According to Lauren, under copyright law if you use something it could be an infringement unless you have an affirmataive permission or a valid fair use defense. There’s protection for you for commentary when you take a piece of a work. For example, if you do concert reviews, some usage could be allowed. On the other hand, if you take the whole thing a run a concert site, this would be competing and unlikely to be a fair use. You can think about the fair use factors including whether you’re in competition with the copyright owner’s ability to profit from what they’ve done.
Wendy gave background on the Chilling Effects project, and how cease and desist letters were chilling new, independently generated content. Chilling Effects was born to collect these letters and put up annotated versions with legal analysis, to help people to understand their rights. From the data they’re gathering, she says they’re seeing a lot of overbroad threats.
Lauren asked if anyone has experienced a situation where they wondered whether what they posted is too close to the edge. A member of the audience asked how much she has to write as commentary in order to qualify for fair use when quoting a newspaper article. Lauren says that if you just link to the article you are safe, and if you reprint the whole article, you are not safe. In the middle, there is a formula where you are not competing with the audience for that article. The non-compete factor and the factor of how much content is used are important considerations.
Another question was raised by an ex-journalist that she was taught that once something was published it is in the public domain. Wendy responded that the facts are public domain, but not the expression of those facts, which are protected by copyright. She explained that the fair use analysis looks at different factors that are stirred together into a soup, with no hard and fast rules. The less your use harms or substitutes for the original, the more likely it is to be fair. So you should think about what do you really need to take from those articles.
Jennifer raised the issue of whether it is important to provide attribution to the article you are quoting. Copyright law does not require this, although it may be ethically sound. There is also a law about removal of copyright management information, so if you do this there could be a claim for this. And it’s good practice to give credit or blame where due, and to let people know your sources of information.
Lauren brought up the fact that government documents are not copyrighted. So you can post the entire government work without permission, such as minutes of government meetings and court cases.
An audience member brought up the experience of being cautious about what she posts given that she’s also a government employee. Lauren responded that when you work for the government, you are a different type of employee. Most employees are at-will and could be fired for any reason. If you’re blogging at work, there is probably some acceptable use policy regarding use of their computer systems. If you’re blogging outside of work, and say things your employer doesn’t like, you could be easily fired as an at-will employee.
If your employer is the government, there are first amendment issues, and if you are a member of a union, unions also have a body of law about permitting discourse about job issues.
There are also trade secret and nondisclosure issues when blogging about topics relating to one’s job.
Another audience member asked the question about the situation where someone else takes the content on your site without permission, and what you should do if this happens to you. Lauren says now you are on the other side, so you could be the one sending the cease-and-desist letter. You would want to lay out what happened, and you could go to the Chilling Effects web site to see what these letters look like. Wendy also pointed out that you could shame the person in the community for doing this, before resorting to the law. If this doesn’t work, then you might send the letter to them or to their ISP to take down the infringing material.
Lauren says that as the blog community becomes more prolific, you will find yourself on both sides of the table, and you will have to make decisions about how you will handle it. She said she is critical of companies that resort to the law before having a conversation, so would think you might also want to have a conversation first.
Lauren talked about Creative Commons. When you publish on your blog, you have copyright protection. But maybe you want people to use your stuff, and Creative Commons gives you the opportunity to attach a license to your work, and put certain conditions on reuse of your work. This way you can retain some control, and pick those aspects of control that are most important to you. There’s no value judgment, you can do whatever you want.
Wendy also mentioned the EFF legal guide for bloggers. It provides general information as a resource to help people dealing with these issues. Jennifer said the FAQ is one-stop shopping and she refers to it often.
Jennifer closed with “blog safe everyone”!
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