Blog Wars: The Changing Legal Landscape for Bloggers
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-Commerce
New 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 if everyone weren’t out to get me.”
Michael McDougal – “The Paper” (1994)
Ron Howard - Director / David & Stephen Koepp - Writers
OVERVIEW
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
FIRST AMENDMENT Congress shall make no law . . . abridging
the freedom of speech, or of the
press
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
copyright.
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;
• the amount and substanKality of 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.
COPYRIGHT TERM Founders: 14 years
Today: Life + 70 years
08
AP’s Excerpt
for Web Use Fee Schedule
08
10
10-‐11
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
08
10
10-‐11
“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.”
AP v. Meltwater
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 Resources
NEW MEDIA RIGHTS A CITIZEN'S LEGAL GUIDE TO FAIR USE IN COPYRIGHT LAW LINK
CREATIVE COMMONS Link
ELECTRONIC FRONTIER FOUNDATION LEGAL GUIDE FOR BLOGGERS LINK
AMERICAN UNIV. CENTER FOR SOCIAL MEDIA CODE OF PRACTICES IN FAIR USE FOR ONLINE VIDEO LINK CODE OF BEST PRACTICES IN FAIR USE FOR POETRY LINK
KONOMARK Link
WIKIMEDIA COMMONS Link
THE FEDS PART 2
FTC Endorsement Guidelines
Video Clip
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.
Lo]y and Legal?
Similar factors for HP/Inkology (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.”
FTC No Action Letter
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.
PRIVATE DANGER
PART 3
Bloggers Can Be Easy Targets for Revenge
LITIGATION RISK
CYBER HARASSMENT
CRIMINAL RISKS
Being Careful
Li>ga>on
• Links can mi>gate defama>on risk • Insurance • An>-‐SLAPP
Harassment
• Be Careful About Merging Your Blog and Personal Informa>on • Call Authori>es if risk of harm • Civil Remedies
Criminal
• 15 States Have Criminal Defama>on Laws • Inten>onal Copyright Infringement can be 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
PUBLICDANGER
PART 4
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 Kelley Internet Law Center 100 Wilshire Blvd., Suite 950 Santa Monica, CA 90401 www.internetlawcenter.net @InternetLawCent Listen to Cyber Law and Business Report Wednesdays at 10AM PT on WebmasterRadio.fm