Blog Wars:The Changing Legal Landscape for Bloggers
Legal Background • Founder of the Internet Law Center in Santa Monica, California• Past Co-Chair California Bar Cyberspace Committee• Part of US Delegation of Internet Experts to meet with Leading Chinese “Netizens”• Part of US Delegation for US-China Legal Exchange on E-CommerceNew Media Background• Host of Cyber Law and Business Report on WebmasterRadio.fm• Publisher of Cyber Report Newsletter• Award-Winning Political Blogger
“I wouldn’t be so paranoid ifeveryone weren’t out to get me.” Michael McDougal – “The Paper” (1994) Ron Howard - Director / David & Stephen Koepp - Writers
Copyright Basics COPYRIGHT CLAUSE To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respec>ve Wri>ngs and Discoveries FAIR USE DOCTRINE. . . . [T]he fair use of a copyrighted work . . . for purposes such as cri>cism, comment, news repor>ng, teaching (including mul>ple copies for classroom use), scholarship, or research, is not an infringement of FIRST AMENDMENT copyright. Congress shall make no law . . . abridging the freedom of speech, or of the press
Fair Use Factors Copyright Act • the purpose and character of the use, including whether such use is of a commercial nature or is for nonproﬁt educa>onal purposes • the nature of the copyrighted work; COPYRIGHT TERM • the amount and substanKality of Founders: 14 years Today: Life + 70 years the porKon used in rela>on to the copyrighted work as a whole; and • the eﬀect of the use upon the potenKal market for or value of the copyrighted work.
Stevens Media Declares War • Copyright The]: We’re not taking it anymore” – “It is our primary hope that Righthaven will stop people from stealing our stuﬀ.” • Media News Group Joins – Combined total of 20 major daily newspapers • Righthaven – 276 Lawsuits – $352,500 in seilements
AP v. Meltwater“Meltwater News is a parasi>c distribu>on service that competes directly with tradi>onal news sources without paying license fees to cover the costs of crea>ng those stories. It has a signiﬁcant nega>ve impact on the ability of AP to con>nue providing the high-‐quality news reports on which the public relies.”
Newton’s Law• 2008 AP Boycoi and Retreat • 2010 Righthaven Recovers $352,500 in Seilements BUT . . . Sanc>ons and Aiorneys’ Fees Awards Force Righthaven in Bankruptcy Unfavorable Fair Use Rulings permilng reprint of en>re ar>cle where Righthaven failed to present evidence of market harm from publica>on by a remote blog • 2012 Meltwater Contends AP Abusing Copyright Laws and is barred from recovery under doctrine of copyright misuse
Fair Use /Open Licensing ResourcesAMERICAN UNIV. CENTERFOR SOCIAL MEDIA ELECTRONIC FRONTIER NEW MEDIA RIGHTSCODE OF PRACTICES IN FAIR FOUNDATION A CITIZENS LEGAL GUIDE TOUSE FOR ONLINE VIDEO LEGAL GUIDE FOR FAIR USE IN COPYRIGHTLINK BLOGGERS LAW LINK LINKCODE OF BEST PRACTICES INFAIR USE FOR POETRYLINKCREATIVE COMMONS KONOMARK WIKIMEDIA COMMONSLink Link Link
The Endorsement Guidelines• § 255.5 Disclosure of material connec>ons. • When there exists a connec>on between the endorser and the seller of the adver>sed product that might materially aﬀect the weight or credibility of the endorsement (i.e., the connec>on is not reasonably expected by the audience), such connec>on must be fully disclosed.
Example 7: Blogger Receives Free Sample • Readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially aﬀect the credibility they aiach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the >me it provides the gaming system that this connec>on should be disclosed, and it should have procedures in place to try to monitor his pos>ngs for compliance.
Similar factors for HP/Inkology FTC No Action Letter (1) Small number of posts; (2) A few bloggers complied; (3) Wriien guidelines that “adequately address our concerns” (4) “The FTC staﬀ expects that HP . . . will take reasonable steps to monitor bloggers’ compliance with the obliga>on to disclose gi]s they receive.”
Updating DotCom Disclosures May 2000 – FTC Issues DotCom Disclosure Guidelines May 2012: FTC holds workshop on upda>ng Gidelines to address social media ads (see below). FTC Response expected soon
WOMMA Standard• Microblogs • Include a hash tag nota>on, either: • #spon (sponsored) • #paid (paid) • #samp (sample) • Addi>onally, WOMMA strongly recommends pos>ng a link on your proﬁle page direc>ng people to a full “Disclosure and Rela>onships Statement.” This statement, much like the one WOMMA recommends for review blogs, should state how you work with companies in accep>ng and reviewing products, and lis>ng any conﬂicts of interest that may aﬀect the credibility of your sponsored or paid reviews.
Bloggers Can Be Easy Targets for Revenge LITIGATION RISK CYBER HARASSMENT CRIMINAL RISKS
Being Careful • Links can mi>gate defama>on risk • Insurance Li>ga>on • An>-‐SLAPP • Be Careful About Merging Your Blog and Personal Informa>on • Call Authori>es if risk of harm Harassment • Civil Remedies • 15 States Have Criminal Defama>on Laws • Inten>onal Copyright Infringement can be criminal Criminal
Criminal Defamation Today Red – States with criminal defama>on laws and prosecu>ons Yellow – States with law on books but no recent prosecu>ons Colorado Law Repealed 2012
Truth Can Be Dangerous• 2012 was one of deadliest years for journalists – 133 journalists killed • Lesson taken by “Arab Spring” is to suppress the internet • Bloggers killed in several countries, including Mexico
THANK YOU!Bennet KelleyInternet Law Center100 Wilshire Blvd., Suite 950Santa Monica, CA 90401www.internetlawcenter.net@InternetLawCentListen to Cyber Law and Business ReportWednesdays at 10AM PT on WebmasterRadio.fm