Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Blogging: Benefits, Barriers and Bombshells

Blogging: Benefits & Barriers

“I’m going to start a blog,” said a friend. When I asked why, her answer was simple: “I have a lot of things to get off my chest.”

Seems a lot of people do. According to blog search engine, Technorati, there were nearly 113 million blogs as of June 2008. And according to the Blog Herald, that number may not include 72 million blogs coming out of China. (See “How Many Blogs Are There? Is Someone Still Counting?” by Ann Helmond, February 11, 2008.)

With numbers like these, chances are you know what a blog is. Wikipedia defines a “blog” as “a Web site, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order. ‘Blog’ can also be used as a verb, meaning to maintain or add content to a blog.”

Blogs have given millions of people a voice in a global conversation. They have also emerged as a cutting edge communication tool for attorneys, providing a fast, scalable and cost-efficient way of establishing an expertise, building a reputation, and connecting with clients worldwide. Those who learn to use blogs effectively are most likely to thrive in this modern world.

With all this opportunity, you’d think that launching a blog would be tough. It isn’t. In fact, you can have one up and running in about ten minutes. But barriers do exist. Most fundamentally, a blog is a digital relationship between author and reader. Like any relationship, it requires constant nurturing and attention. For a blog, this means frequently adding new posts. A blog that goes stale shows disinterest, and that isn’t helpful when trying to build a global connection.

Some ideas for keeping the digital relationship healthy: Set up a time to write each day. Commit to posting three times a week, no matter how short that post might be. Impose a word limit, like legal haiku, and write about a new case in five lines or less. Or, using no more than three lines, pass on a tip for younger lawyers. Or in one very long (but well punctuated) sentence, “get something off your chest.” If these ideas don’t work, hire a ghost-writer, conduct an interview or invite a guest blogger to write for a while. And if none of this works, don’t sweat it. Do something else. Blogs can be great, but they’re no match for countless other things in life.

Blogging Bombshells:

There is no question that blogs can cut both ways: marketing goldmines and minefields of lurking liability. And understanding this is critical to exploiting their essence. A look at the artillery, and how to avoid it:

Copyright Infringement:

Stuffing your blog with high quality, original content is an excellent way to increase readership, web traffic and search engine ranking. Stuffing it with content poached from another site will only lead to trouble.

Copyright protects a wide range of works, including literary, musical, pictoral and audiovisual pieces from being reproduced without the permission of the copyright owner. 17 U.S.C. § 102. Subject to caveats and limitations we lawyers love, the owner of a copyright has the sole right to authorize a reproduction of the work, create a derivative work, distribute copies of the work, or display it publicly. 17 U.S.C. § 106.

In other words, just because it’s on the Web, doesn’t mean it’s free.

Then again, with blogging, nothing copied, nothing gained. Blogs by their nature are often snarky, dishy and critical. They may lift – or quote from — copyrighted content just for the purpose of discussion. Does this type of copying amount to infringement? Remember the fair use doctrine? As the U.S. Supreme Court observed in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, “some opportunity for fair use of copyrighted materials [is] necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . .’.”

This was the issue in an incident involving the Associated Press and the Drudge Report. The Drudge Report posted excerpts from several Associated Press articles, along with links to the original stories. The AP cried copyright infringement and sent the Drudge Report “take down notices” pursuant to the Digital Millennium Copyright Act (17 U.S.C. §§ 512(c), the “DMCA”).
Drudge Report argued that its use was protected by the fair use doctrine because the text was there to spur discussion and debate. Under that doctrine, short quotations used “for purposes such as criticism, comment, news reporting, teaching … scholarship or research [are] not an infringement of copyright.” 17 U.S.C. § 107.

But the analysis doesn’t stop there. Courts evaluate fair use by considering four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of copying, and (4) the market effect. The most significant is the last one. If the copy lessens the demand for the original work, it’s difficult to claim fair use. On the other hand, if the copy is used strictly for purposes of parody, criticism, or news reporting, it’s more likely to be deemed “fair.”

So if you want to post pics of “Hello Kitty” on your blog, be prepared to rant about how you’d like to see this cat wearing concrete shoes and a sign reading “Goodbye Kitty.”
What About Secondary Liability?

Recall that secondary liability exists with respect to copyright law under two scenarios: contributory infringement and vicarious infringement.

Contributory copyright infringement is defined as either actively inducing, causing, or materially contributing to the infringing conduct of another person, or providing the goods and means necessary to help another person infringe. Black’s Law Dictionary 796 (8th ed. 2004). Vicarious copyright infringement, instead, is a person’s liability for an infringing act of someone else, even though that person has not directly committed an act of infringement. Id.

Let’s say you scrupulously avoid padding your blog with text, music or images you’ve lifted from other sites on the Web. What happens when your readers post copyrighted material to your blog? In a traditional print publication, you’d have a problem. In the cyber world, you have a defense.

The safe harbor provision of the DMCA may apply to protect you from liability, provided you comply with the Act’s requirement of designating an agent for notification with the Copyright Office, and establish – and post — a policy against repeat infringement by your readers. See Io Group, Inc. v. Veoh Networks, Inc., 2008 WL 4065872 (N.D.Cal. Aug. 27, 2008).

In Io the plaintiff discovered ten short clips of its copyrighted skin flics running on Veoh’s website. (Like YouTube, Veoh hosts videos uploaded by users.) Rather than sending a DMCA take down notice, the plaintiff filed suit alleging copyright infringement. Veoh claimed that had it received a take down notice, it would have removed the allegedly infringing content and terminated the poster’s account. Based on this, Veoh moved for summary judgment, arguing that the DMCA’s Safe Harbors provides protection for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools. The Court agreed.

Finding that Veoh was a Service Provider under the DMCA, the Court held that Veoh’s hosting of user-provided content was protected by the DMCA safe harbor provision. It ruled that “a service provider is eligible for safe harbor under section 512(c) if it (1) does not know of infringement; or (2) acts expeditiously to remove or disable access to the material when it (a) has actual knowledge, (b) is aware of facts or circumstances from which infringing activity is apparent, or (c) has received DMCA-compliant notice; and (3) either does not have the right and ability to control the infringing activity, or – if it does – that it does not receive a financial benefit directly attributable to the infringing activity.”

Applying this ruling to the blogosphere, bloggers do not have a duty to police their blog for potential copyright infringement on behalf of third-parties, but must act to remove infringing content when put on notice.

What if the take down notice Gets it Wrong — And the Work is Actually Entitled to Stay?
The flip side of the DMCA take down notice occurs when the original poster believes he or she had the right to post, and sends notice demanding the work be reinstated. Is there an obligation to determine whether the work is entitled to reinstatement? Yes, by the person who sent the original take down notice.

A person sending a take down notice under the Digital Millennium Copyright Act is required to affirm that he or she “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. §512(c)(3)(A). If the sender knowingly makes a material misrepresentation in this regard, or is deliberately ignorant as to whether the material is authorized to remain, the party whose content is taken down can sue under 17 U.S.C. §512(f). Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. August 20, 2008)

In Lenz, a mother videotaped her daughter dancing to Prince’s “Let’s Go Crazy,” then uploaded the masterpiece onto YouTube. Shortly after the tyke’s debut, Universal Music Group put an end to it by sending YouTube a DMCA take down notice. Never mess with a mom: she argued that her use of the music was protected by the fair use doctrine, and sued Universal under §512(f). Universal moved to dismiss, asserting that a copyright owner cannot be required to evaluate the fair use question prior to sending a take down notice. The court disagreed, holding that the copyright owner must evaluate whether the material makes fair use of the copyright before sending the take down notice.

Trademark Infringement

Bloggers also run the risk of being hit with trademark infringement actions. This happened when Las Vegas nightclub, “Privé,” sued Vegas-based blogger, Michael Politz.
Politz writes about the Vegas club scene on his blog, TheVegasEye. In July 2008, he made some unflattering comments about Privé, and included a copy of Privé’s trademark. Privé alleged that Politz had “infringed upon, disparaged, diluted and tarnished” Privé’s trademark by using it alongside defamatory statements about the club.

Politz will likely turn to the nomitive fair use doctrine in hopes of a defense. This doctrine permits the use of another’s trademark to identify the plaintiff’s goods or services provided there is no likelihood of confusion based on that use. Playboy v. Welles, 279 F.3d 796 (9th Cir. 2002). In Playboy, the House-of-Hef sued its former top bunny, Terri Welles, for using the words “Playboy” and “Playmate of the Year” in her website’s metatags. Welles won, arguing that these terms were necessary to describe her as “Playboy Playmate of the Year 1981.”
With respect to Privé’s claim that Politz disparaged the Privé trademark, the club is not likely to score points there. Although a party may be liable for disparaging another party’s goods or services, the Ninth Circuit has ruled that disparagement cannot apply to a trademark. See Freecycle Network, Inc. v. Oey, No. 06-16219, slip. op. at 13244-45 (9th Cir. Sept. 26, 2007). see also 15 U.S.C. § 1125(a)(1)(B).

Defamation

The Internet has opened new channels of communication and self-expression. The individual’s ability to have a voice in the world has never been greater. While this is good, it also presents risks to those who publish first and think later. As with traditional print media, laws related to defamation apply in cyberspace as well.

Defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation and published to a third party as a result of negligence or malice. It can appear in three ways: written defamation (libel); spoken defamation (slander); and the defamation of a business’ goods or services (trade libel).

Recall that truth is a complete defense. Also, the First Amendment protects statements of opinion. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). A statement is an opinion when it is expressed in a manner that is not provably true or false, and cannot reasonably be interpreted as conveying actual facts. Id. at 17 -21.

The Anti-SLAPP Statute

Blogs have been a breeding ground for libel claims. Just think of my friend itching to get something off her chest. With 113 million bloggers, uncharitable things are going to be said, feelings are going to be hurt, and people are going to sue. See Tendler v. www.jewishsurvivors.blogspot.com, No. H031130, 2008 WL 2352497 (Cal.App. 6th Dist. June 10, 2008).

In Tendler, anonymous bloggers posted remarks about Rabbi Tendler. Finding their remarks farkakt and the bloggers meschuge, the good Reb sought subpoenas requiring Google (which owns the site on which the comments appeared) to disclose the IP addresses of the people who created the posts. The defendants showed a fair amount of chutzpah and moved to strike pursuant to California Code of Civil Procedure section 425.16. Section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of . . . free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike . . . .” Siding with the defendants, the hochem judge granted their motion, and it was gute nacht for the Rabbi! Id. See also GTX Global Corp. v. Left, No. B192626, 2007 WL 1300065 (Cal.App. 2 Dist. May 4, 2007), (GTX sued after Left said on his blog that GTX was headed by a convicted felon, and engaged in stock fraud; court granted motion to strike and ruled that, for purposes of the Anti-SLAPP statute, Left’s blog was a public forum).

The Telecommunications Act of 1996, 47 USC § 230(c).

Bloggers may also have protection for allegedly defamatory statements made by others on their site. Providers of interactive computer services are immune from liability for content created by third parties when sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 230(c).

Courts have applied Section 230(c) to a broad mix of “computer service providers,” strongly suggesting a blog would also be covered. For example, courts have found that this Section shielded the publisher where third party content was posted on a roommate matching site (See Fair Housing Council v. Roommate.Com, 489 F.3d 921 (9th Cir. 2007)); an on line newsletter (Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003)); and a blog entitled “ripoffreport.com” that warned consumers about unscrupulous practices and bad service. Section 230(c) has also been used as a defense to claims of negligent misrepresentation, interference with prospective advantage, unfair business practices.

Invasion of Privacy

Invasion of privacy is a potential danger to bloggers for the unwarranted public disclosure of private facts and the unauthorized use of another person’s name or likeness.
The unwarranted public disclosure of private facts

Private facts are those details that most people would not appreciate finding published on a blog. For example, in Steinbuch v. Cutler (DC D.C., filed May 18, 2005), plaintiff sued after Jessica Cutler included personal facts on her blog about Plaintiff when describing their intimate sexual relationship. OK, it wasn’t just him she was having a relationship with. She was having affairs with five other guys in her office, all at the same time, and she provided specific details about each of them. Plaintiff didn’t appreciate the disclosure – or at least Ms. Cutler’s unflattering exposè of his performance.

One defense to this type of privacy claim is that the facts disclosed are “newsworthy.” A private fact is newsworthy if some reasonable members of the community would entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if they involve private information about the participants. In Ms. Cutler’s case, that defense would have been worth trying. It turns out she didn’t work in any office. It was the office of a U.S. Senator, and one her lovers was a high level Bush appointee whom she described as “a married man who pays me for sex.” Newsworthy? I’m interested.
The unauthorized use of another person’s name or likeness.

Most states impose liability for the unauthorized use of another person’s name, likeness, or other attributes for exploitative purposes. In California, this typically involves the use of someone’s name or likeness in a commercial setting, such an advertisement. California Civil Code § 3344 provides that “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without permission is liable for damages.”

This language is likely broad enough to prohibit the unauthorized use of another person’s image on a blog, even if only to spruce up a site used to promote professional services. See e.g. Blair v. Nevada Landing Partnership, 859 N.E.2d 1188, 1192 (Ill. App. 2 Dist., December 8, 2006) (casino worker sued claiming the casino used his photograph on website without his permission; dismissed on statute of limitations defense); see also Lehman v. Discovery Communications, Inc., 332 F.Supp.2d 534, 539 (E.D.N.Y.2004) (“[A] republication of the plaintiff’s likeness can constitute a new cause of action if altered so as to reach a new audience or promote a different product.”).

Again, most states have an exception to liability for news reporting and commentary on matters of public interest. For example, this defense would likely have applied if Ms. Cutler had posted the name or likeness of the politician who kept her on payroll.

Other Bombshells Worth Mentioning

While a totally comprehensive list of bombshells is nearly impossible, the following areas could also prove problematic to the unwary blogger.

Misappropriation of Trade Secrets — The disclosure of someone else’s trade secrets is never a good idea. Plastering them on a blog is even worse. And the flipside: When intending to assert trade secret protection, it is a good idea to make sure the protected information is not posted on the company blog.

Unfair Competition — California Business and Professions Code §17200 and 15 U.S.C. §1125(a) broadly protect against unfair competition. These statues can apply to such “unethical” conduct as inundating blogs with return hyperlinks.

Securities Fraud – Posting false information about a publicly traded company for the purpose of influencing investors’ purchase or sale decisions is a violation of the federal securities laws. See Stoneridge Investment Partners v. Scientific-Atlanta 552 U.S. ___ (2008). Despite what those bigwigs on Wall Street say, minimum security federal prisons are not just like summer camp for adults.

Obscenity Laws — Federal statutes which prohibit the distribution of obscene material remain constitutional. See e.g. 18 U.S.C. 1461 and 1465; U.S. v. Extreme Associates, 431 F.3d 150 (3d Cir. 2005) (overturning lower court’s dismissal of indictment against operator of adult website for distributing obscene material); U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982) (“[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”). But c.f. Lawrence v. Texas, 539 U.S. 558 (2003) (pro-privacy decision which some interpret as calling into question constitutionality of federal statutes prohibiting distribution of obscene material).

The First Amendment — Even after the Bush-Cheney Administration, the law remains that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . .” Of course, that doesn’t mean anyone can say anything, anytime. See State v. A.B., No. 67A01-0609-JV-372 (Ind. App. April 9, 2007) (when middle school student posted obscenity-laced comment critical of school’s principal and criticized school’s policy against body piercings, appellate court held student’s web-based statements were political speech protected by the First Amendment); but c.f. Doninger v. Niehoff, 527 F.3d 41, (2nd Cir. 2008) (following high school student’s blog post referring to school administrators as “douchebags” and encouraging others to “piss off” school principal, school blocked student’s run for Senior Class Secretary; Second Circuit affirmed, reasoning offensive language did not comport with the standard of conduct expected of a school government participant).

The Reporter’s Privilege to Keep Sources Secret — The “reporter’s privilege” is the right, in some jurisdictions, that journalists have to keep their sources secret. This privilege should apply to bloggers who gather and disseminate news, especially in California, where it protects all persons “connected with or employed upon” a media organization. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. Indeed, at least one California case has expressly held that this law extends to bloggers. In O’Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal.App. 2006), Apple Computer filed suit after bloggers disclosed confidential information about a device intended to facilitate digital sound recordings on Apple computers. When Apple sought to discover the source of this leak by subpoenaing information from the web sites on which it appeared, the defendants moved to quash. The trial court denied their motion, and the Court of Appeal reversed. It held that “any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and . . .” Id. (citing Mitchell v. Superior Court (1984) 37 Cal.3d 268.) The court reasoned that the reporter’s privilege applied to on line journalists because the law “is intended to protect the gathering and dissemination of news and that is what petitioners did here.” Id.

Conclusion

Technorati estimates that there are two new blogs created every second. With figures like these, it’s easy to see how blogs are changing the face of media by giving a voice to millions, but also creating new opportunities for trouble. Still, for those eager to take advantage of this cutting edge communication tool, it isn’t hard. Just watch out for the bombshells and follow these easy steps:

1. Go to https://www.blogger.com/start and follow the links to set up a down-and-dirty blog. (Estimated time: 10 minutes; estimated cost: $0).

2. Alternatively, go to http://wordpress.org and follow the links for the appropriate download. Why Wordpress? In two words: power and control. Wordpress has emerged as a leader in the field of blogging, attracting talented designers and programmers that are producing, usually for free, a large array of Themes (the templates that control the blogs appearance), Plugins (web-based applications written in PHP and Javascript that extend the capacity of what your blog can do) and Widgets (more advanced plugins that take advantage of the inherent structure to add features to your blogs Sidebars).

3. If you go with Wordpress, you will also have to: (a) purchase a domain name ($7.95 a year at www.omnis.com; ignore GoDaddy with its constant sales pitches); (b) Purchase hosting: $6.95 a month; and (c) Install Wordpress’ latest version.

4. Begin posting and don’t stop.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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