Introduction

Although blogs are used by millions of people for many diverse purposes, there are several major issues that effect every blogger.  The interconnected nature of the Internet and the myriad of varied jurisdictions that access the Internet expose bloggers to a tremendous amount of potential liability.  Potential lawsuits can be divided into three general areas: a) suits based on violation of a person or corporation's intellectual property rights, b) defamation suits brought by a person who is offended by comments made about them on a blog, and c) prosecution for the unlawful display of adult content.

To the extent that bloggers share information from other sources, federal intellectual property laws have a major impact on the content of every blog.  Knowing what can and cannot be copyrighted, when corporations can use trademark law to limit public comment, and how the Digital Millennium Copyright Act (DMCA) may expose bloggers to special constraints is vital to understanding the rights of bloggers.


i. Use of Others' Work:  

Whenever a blogger uses some creative content from another source, they must consider whether that material is copyrighted.   Under Title 17 of the U.S. Code copyright requires an “Original work of authorship fixed in a tangible medium of expression”

It is clear that copyright applies to on-line works under cases such as Kelly v. Arriba Soft, 280 F.3d 934 (2002).


Copyright does not apply to:

a) Government works such as federal statutes and Supreme Court cases

b) Facts and ideas in their pure form.  Copyright protects only the expression of ideas, not the ideas themselves.  However, a group of facts arranged in a useful way or collected for a specific purpose can be copyrighted.  If an idea can only be expressed in only one way the idea and expression are said to have "merged" and copyright does not apply.  For example, in the case of Apple v. Microsoft, 35 F.3d 1435 (9th Cir. 1994) one court ruled that the "trash can" icon on a desktop cannot be copyrighted because there were a limited number of ways to indicate the idea of a place where files are sent to be deleted.

c) Single words or short phrases are often not copyrightable.  However,  truly distinctive expression may be copyrighted regardless of length.  For example, a single musical note in the song "One" from the musical "A Chorus Line" was held to be copyrightable.


Fair Use (17 U.S.C. § 107)

By far, the protection most bloggers should claim when they use the work of another is Fair Use.  Fair Use protects limited use of copyrighted works when made for societally beneficial purposes where the copyright holder is minimally harmed by the use.  Fair Use has been described as the "safety valve" of copyright that ensures that First Amendment values are not compromised by the aspects of copyright that silence certain speech.


Courts evaluating a claim of Fair Use analyze the infringing use based on four factors:

1. The purpose and character of your use

2. The nature of the copyrighted work

3. The amount and substantiality of the portion taken, and

4. The effect of the use upon the potential market. 

 

Most Fair Use is either a) comment or criticism of the copyrighted work (as in a movie review or a newspaper editorial) or b) parody (as in cases like Campbell v. Acuff-Rose, 510 U.S. 569 (1994) where the Supreme Court granted protection for a song by the rap group 2 Live Crew parodying of the Roy Orbison song "Oh Pretty Woman."

 
Expiration
Another significant limitation on copyright comes from the fact that all copyrights expire.  The  duration of copyrights can be very complicated based on when a work was created, whether it was renewed, and a host of other factors.  Once a copyright has expired, it is said to have entered the public domain and can be freely used by anyone for any purpose.  For a quick overview of when and how copyrights expire see this chart. 

 
Linking
Probably the single most common issue bloggers have when using the work of others is linking.  Under cases like Ticketmaster v. Tickets.com, links to other sites are permitted.  However, the practice of “deep linking” where a blogger links to a secondary page on another's web site, rather than the front page, is still an unsettled issue.

 

ii. Use of My Work by Others:

In general all of the rules discussed above apply when others use content from your blog.

If others leave comments on your blog they may be assumed to have given an implied licence for you to use them.

As a blogger, it is best to clarify all of these copyright issues with a license that spells out the terms of use.  A great way to do this is with a Creative Commons License 

 

 

iii. DMCA Suits 17 U.S.C. § 512

The Digital Millennium Copyright Act is a federal law that creates a safe harbor immunity from copyright liability for internet service providers (ISP's).  In some ways, this protects bloggers by making ISP's more comfortable hosting blog sites that might otherwise expose them to liability.  However, the DMCA also specifies steps that can be followed to take down content from blogs or even an entire blog.

a) Take Down:

Under the DMCA a copyright holder can request take-down if they provide notification of infringing content along with:

    *   The name, address, and physical or electronic signature of the complaining party [512(c)(3)(A)(i)]
    * Identification of the infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
    * Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
   * A statement by the copyright holder of a good faith belief that there is no legal basis for the use complained of [512(c)(3)(A)(v)].
   * A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the copyright holder [512(c)(3)(A)(vi)].


b) Counter-Notice and Put-Back:

If your blog is taken down you may counter-notify and the copyright holder has 10 days to bring suit or your ISP can put your blog back up and retain immunity.

You can find a form to request put-back here 

You also have the option of bringing a 512(f) suit for wrongful take-down.  Under this section the DMCA creates liability for ""Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification."

 


iv. Trademark & Right of Publicity

Many blogs comment on public figures or corporations, either in passing as part of a larger discussion or to specifically criticize the action or practices of the well-known party.  In these situations it is especially important for bloggers to understand their rights since such parties often have aggressive lawyers who will threaten legal action whether or not they have legal grounds for complaint.

In general, use of other’s trademark is permitted where you refer to a product or comment on a company or person, as long as “consumer confusion” is avoided.  Under cases like PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001) it is clear that the primary purpose of trademark law is to protect the economic value and consumer goodwill of an existing company or public figure.

Similarly, the Right of publicity of famous people is narrow but where risk of false implication of endorsement exists there may be an issue.

Recent caselaw even makes it clear that use of a trademarked name in a blog name or URL is permitted as long as the use is:

a) non-commercial and

b) non-confusing


For example the case of Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Cir. 2005) extended protection to the web site   http://www.bosleymedical.com/  created to criticize Bosley's hair restoration procedure.

One of the most common types of liability bloggers may face comes from parties who are aggrieved by comments that cast them in an unfavorable light.   As with trademark law, many people use the threat of a defamation suit to bully bloggers into removing content even if there is little legal basis for their threat.  As such, an understanding of defamation law is crucial for anyone who plans to post their impressions of others on the Internet.


i. Definition and Elements

Under cases such as NY Times v. Sullivan, 376 U.S. 254 (1964) defamation is "an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation."  As this definition suggests, defamation law applies to all media, including blogs.


Although defamation statutes vary from state to state, almost every statute shares four common elements:

1. a publication to one other than the person defamed;

2.  a false or misleading statement of fact;

3. that is understood as:

    a. being of and concerning the plaintiff; and

    b. tending to harm the reputation of plaintiff.

4. If the plaintiff is a public figure, discussed below, he or she must also prove actual malice; e.g. that the blogger had "actual knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not."



 
ii. Defenses

While different states have diverse defamation statutes, several defenses are universally recognized based on either longstanding common law tradition or U.S. Constitutional command under the First and Fourteenth Amendment.  These defenses are:

1. Truth - It is black letter law that if a statement is true, you cannot be liable for defamation for printing it.  For example, if you write "President Bush was born July 6, 1946" you are immune from suit.

2. Opinion - Similarly, if a statement cannot be shown to be true or false because it is simply an opinion you are also immune from suit.  For example, if you write "President Bush is a really bad chief executive" you are immune from suit.

3. Verifiable Fact -  Any fact that can be verified by reliable sources is also protected.  For example, if you write that For example, if you reported that President Bush is imperiling the nation with statements made in his blog, you might be liable.  However, if you reported that The Onion wrote a story to that effect, you would be protected because the story does exist, even if it is not true.

4. Fair and True Report of a Public Proceeding - If you report or discuss a public proceeding such as a debate, press conference and your report is accurate and even-handed, you are shielded from liability.  Thus, any statement taken from a Bush press conference can be used as long at it is literally accurate and does not misrepresent the context of the statement.

5. Neutral Reportage of a Public Controversy - When you report on or discuss a conflict between third parties, you are protected from liability for the defamatory statements of that third party.  Thus, any potentially defamatory statements from someone like Michael Moore can be reprinted as long as they are attributed and presented as part of a public controversy.

 


iii. Protective actions

 There are several steps that a blogger can take to mitigate the damage from a defamation suit.

a) Retraction -  publishing a statement disclaiming and apologizing for a defamatory statement will mitigate (but not remove) legal liability and may help persuade an angry plaintiff to drop their suit.

b) Insurance - There are several companies that will provide insurance against a catastrophic damage award from a defamation suit.  If you plan to write a blog that takes a lot of shots at celebrities, politicians, or other people who are wealthy and protective of their reputation it may be worth your while to get insurance.

c) Unfortunately, the two actions most commonly assumed to help mitigate a defamation claim do not provide any protection.  Changing or not using the name of the person you are defaming does not insulate you from liability.  As long as the person can be identified from your statements in any way, you remain liable.  Similarly, republication of another person's defamatory statements makes you just as liable as they are.  Notice the distinction between the defense of Neutral Reportage (e.g. "Michael Moore said...") and this scenario where you simple repeat what Moore said without distancing yourself from the statements.




iv. Other issues

Most courts vary the level of proof required based on the type of person bring suit.  The more well-known a person is, the more latitude bloggers have in discussing them.


There are three distinct classes of plaintiff in a defamation suit:

a) Public Official or Figure - is a person who's job naturally brings them into the public eye for discussion and scrutiny.  Politicians, superstar celebrities, and similar personalities who exercise general power over the nation or occupy a position of continuing news value must prove actual malice to win a defamation suit.

b) Limited Purpose or "Vortex" Public Figure - is a person who is generally private but has made themselves or become a public figure in one specific, limited context of public controversy.  A baseball player who has been accused to taking steroids would be considered a public figure for stories concerning his play, his drug use, and perhaps his health.  However, if a blogger reported that he was cheating on his wife, the plaintiff athlete would be considered a private person and only have to prove negligence, discussed below.

c) Private Party - is anyone who is not generally in the public eye.  If a blogger made defamatory statements about their teacher, a co-worker, or their next-door neighbor the plaintiff would only have to prove that the blogger acted neglegently.  This standard is much easer to prove than actual malice and only requires showing that the blogger took less care than would be expected from an average person or an average journalist in putting together their story.  There have not yet been any cases discussing what an "average blogger" standard would look like.

Like defamation law, the law of adult materials has an overarching federal structure but every state brings its own nuances and idiosyncracies.  As such, bloggers should understand the basic structure of the law and be prepared to investigate the specific wrinkles of a given jurisdiction if they are contacted by authorities from that jurisdiction.  Many bloggers may not expect to deal with the laws of adult materials, but if you host or discuss artwork, if you (or people who comment in your blog) gossip about celebrity relationships, or if you have any discussion of public health, this area of the law may apply to your blog. 


i. Indecency & “lascivious images”

Under Reno v. ACLU, 521 U.S. 844 (1997) "indecent" sexually explicit images, and texts are completely protected by the First Amendment.

The federal government does place some limited record-keeping regulations on "lascivious" content.  Content is generally found to be "lascivious" under the Dost Test.  The test is not a bright-line rule, but generally is comprised of six factors:

    * Whether the genitals or pubic area are the focal point of the image;
    * Whether the setting of the image is sexually suggestive
    * Whether the subject is depicted in an unnatural pose or inappropriate attire considering her age;
    * Whether the subject is fully or partially clothed, or nude;
    * Whether the image suggests sexual coyness or willingness to engage in sexual activity; and
    * Whether the image is intended or designed to elicit a sexual response in the viewer.




ii. Obscenity & “community standards”

In contrast, material that is obscene is wholly unprotected under Miller v. California, 413 U.S. 15 (1973)

Miller set out a three-prong test to determine if a work is obscene:

a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

b) Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law;

c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 

As you might have guessed, the crux of Internet obscenity is how one defines "community standards" on the Internet:

a) Today - we use a “nationwide audience” under Reno, but in practice the most sensitive venue is used by prosecutors for forum shopping.

b)  This "most puritanical jurisdiction" policy has been challenged in the case of Nitke v. Ashcroft.  Further, there have been very few prosecutions for obscenity in the last decade and there is some doubt that obscenity laws are still valid after Lawrence v. Texas, 539 U.S. 558 (2003) invalidated the use of bare morality as a justification for laws.  One court, in the Extreme Associates, 352 F.Supp 2d 578 (2005) case, has already held obscenity laws to be unconstitutional.


 

iii. Child Pornography

Sexual images involving children are completely unprotected under the Ferber, 458 U.S. 747 (1982) and Osborne, 495 U.S. 103 (1990) cases, and there have been numerous state and federal prosecutions for posting these sorts of images.

However, in 2002 the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) that there is an exception for “virtual” porn that does not involve actual children.



 

iv. Record keeping required under federal law

18 U.S.C. § 2257 requires “producers” of adult material to keep a record of the name, any alias used, and date of birth of all people who appear in adult content on a web site.

This law applies to even non-commercial sites such as personal blogs.

Right now the Department of Justice pushing for additional record-keeping requirments that include images posted and the URL of the site for 5 years after site closes.  This has not been passed into law yet, but would have serious implications for bloggers if it is.