Blogging Between the Lines

Presented by:
Kevin M. Goldberg, Esq.
Fletcher, Heald & Hildreth, P.L.C.
Phone: 703-812-0462
E-mail: Goldberg@fhhlaw.com
Website: http://www.fhhlaw.com
Blog: http://www.commlawblog.com
 Two Areas of Concern
1. Information You Produce

2. Information Added by Others

Information You Produce
• The laws generally don’t change

• But the lack of usual and important controls can affect existing laws
in important ways:

• Rush to publication/lack of editing process (see: Washington Post videos)

• Ability to use multiple and new/unfamiliar media

Information You Produce -- Key Areas of Concern

• Defamation/False Light
• Copyright
 Information You Produce
(Defamation/False Light)

8 Elements to be Proven by a Plaintiff as a Result of

New York Times v. Sullivan

•Defamatory
•False
•Assertion of Fact
•About the Plaintiff
•Published
•With Fault
•Causing Damage
•Without a Privilege for the Defendant
 Defamation/False Light
(Assertion of Fact Element)
Statements of Fact vs. Statements of Opinion

Is it capable of being answered “Yes” or “No”?

Look at:

Verifiability of the alleged libel

Common usage or meaning of the specific language
Full context of statement
Broader context of statement (what sort of publication)
 Defamation/False Light
(Fault Element)
Public Official or Public Figure = Actual Malice

These people have assumed special roles in society and special

prominence in resolution of public questions

These people have greater access to the media to defend themselves

In many cases, they have voluntarily exposed themselves to risk of injury

from defamatory falsehood

Private Figure = Negligence

 Defamation/False Light
(Actual Malice)
•A statement is made with actual malice if the writer or speaker has knowledge that it
was false or made it with reckless disregard to its truth or falsity

•This must be proven by clear and convincing evidence

•Examples applicable to blogging:

Purposeful failure to interview a person with opposing viewpoint

Using headline despite knowledge that readers might misinterpret it
 Defamation/False Light
(Damages)

3 Kinds (all are potentially affected by Correction or Clarification Statutes):

• Compensatory

• Compensation for actual money loss or provable monetary injury

• Usually must be shown before any other damages can be collected

• Special

• Sometimes known as “general” damages

• Monetary compensation paid by publishers for injury to reputation, injured feelings, sham, hurt, humiliation,
mental anguish

• Punitive

• Meant to punish

• Often well out of proportion to the amount that is awarded for compensation
Defamation/False Light (False Light Example)

SPORTS REPORTERS SEEKING TO HOOK into a

teleconference with University of Central Florida football coach
George O'Leary got a little more action than they bargained for,
according to an article in the Chicago Tribune.

When school officials handed out the phone number for reporters
to gain access to the teleconference, they were off by one digit.
Instead of getting the coach, reporters got another kind of fantasy
league. According to a blog by an Orlando Sentinel staffer, the
voice on the other line said, "Hi sexy, you've reached the one-on-
one fantasy line.“

The reporter hung up, rechecked the school news release again to
make sure he hadn't typed in the wrong number, and dialed again.
Instead, he got the same phone sex hotline, "complete with offers"
that the blogger wrote, "I can't really post on this blog.“

The culprit was the school's new director of athletic

communications, who accidentally listed one digit incorrectly
when he released the teleconference contact information. The
September teleconference was postponed until the school could
come up with a less personal connection.
 Steps to Avoiding Copyright Infringement
•Determine Ownership

•Is the material eligible for copyright protection?

• (Is it an original work fixed in a tangible medium)?
•Who owns the Material?
•How long do they own it?
•What rights do they own?

•Avoid Substantial Similarity

•Can you Purchase or License the Content?

•Key Terms to Remember

•Statutory Licenses

•Are you Engaged in a Fair Use?

•Do other defenses or safe harbors exist?

 Determining Copyright Ownership

•Original
•Independently created by the author
•Has some minimum degree of creativity

•Work of Authorship (Defined in Copyright Act)

•Fixed (more than just transitory duration)
•Tangible Medium of Expression
 Determining Copyright Ownership
Public Domain
•Does Not Mean it is already being used somewhere,
somehow -- the fact that something is on the Internet does
not mean it is “public”

•It simply means that the Copyright Term has expired.

•This is why you need to identify the owner and when the
work was created.
Term of Copyright Ownership
 Rights of a Copyright Owner
•Reproduce the copyrighted work

•Prepare Derivative works

•Distribute by sale, transfer, rental, lease, or lending

•Perform the work in public

•Display the work

Rights of a Copyright Owner
(Reproduce)
Display
 Display
(Resolution)
 Extent of Ownership Rights

• A copyright owner has a limited monopoly to engage in these five

activities.

• Unless you are the copyright owner, you cannot use a currently
copyrighted work or anything substantially similar to the work
unless:

– You get permission right to use the work via purchase or license

– You are engaged in a “fair use”

– Another defense exists

 Permission/Licensing

Because a copyright is a piece of property (“Intellectual Property”) it

can be bought, sold, or leased/rented/licensed, with the following
characteristics:

– Exclusive or non-exclusive

– Limited in duration or perpetual

– Types of media covered**

– Other conditions, such as attribution

– Statutory and Compulsory Licenses

Licensing of Clip Art
 Better Clip Art Options

Derived from Yahoo! Derived from Wikimedia free content projects

http://www.flickr.com http://commons.wikimedia.org/wiki/Main_Page
Best Clip Art Option?
 The Special Problems of Linking and Embedding
Advances in technology and social media provide the ability to link with
text, pictures, and even audio or video, raising questions applicable to all 5
rights exclusive to a copyright owner

Easiest Solution:

Use the embedding function available through YouTube and other Social
Networks to use the official version
The Fair Use Defense
 Fair Use Situation # 1 – Text

Tip: Beware the Copyright Troll!!!

Fair Use Situation # 2– Audiovisual Content
 Remedies

• Actual damages

– Profit lost by copyright holder

– Profit gained by infringer

• Statutory damages
– $750 - $30,000 per work, based upon the judge’s discretion
– Can be increased to $150,000 if proven to be willful or reduced to $ 250 if
proven to be innocent or willful

• Injunction

• Criminal prosecution (punishment may include fines/jail)

Steps to Avoiding Copyright Infringement
 Information Produced by Others
(Key Areas of Concern)

• Section 230 of the Communications Decency Act

(Defamation/False Light)
• Section 512 of the Digital Millennium Copyright
Act (Copyright)
 Information Produced by Others
(Text of Section 230 of Communications Decency Act)

No provider or user of an interactive

computer service shall be treated as the
publisher or speaker of any information
provided by another information content
provider
 Information Produced by Others
(Section 230 Application (Post-1996))

Has protected defendants in the following actions:

Defamation
Invasion of Privacy
Publication of Trade Secrets

But not these:

Federal Criminal Laws

Obscenity
Child Abuse

Intellectual Property (Copyright/Trademark)

 Information Produced by Others
(Limited Exceptions to Section 230 Protection)

When there is evidence that the company or an employee posted the content

Personal or Company Blogs

RSS Feeds

Prompting the Poster

MCW v. Badbusinessbureau.com

Operator of a website entitled was not entitled to this defense because it had "created and developed" information on its site that
was critical of local businesses.

Worth noting that www.badbusinessbureau.com specifically directed certain actions, including actively encouraging and
instructing posters what to include in their defamatory posts on the site

Roommates.com/Craigslist

Roommates.com’ s creation of standard questions with drop down menus that offer mandatory responses from users (such as male
or female, or sexual orientation of the user) are content created by site, even if the user must choose the actual answer to each
question. 

Compare with Craigslist, where posters often included that information, but Courts have twice said that Craigslist has no liability
 Information Produced by Others
(Responding to Subpoenas)

If the identity of that original speaker is unknown, the victim will often subpoena the website to get that information, which also
takes time in litigation.

Caught between the “rock” of litigation and the “hard place” of censorship, many newspapers have turned to the
reporter’s privilege as a means of protecting both their legal interests and their reputation

Courts in Oregon, Montana and Maryland have held that the state shield law allows a newspaper to protect the identity of
an anonymous poster as though that person was a source; a similar case is pending in Illinois

Will depend on how a journalist is defined in the state shield law

 Information Produced by Others
(Key Provisions in Terms of Use)

•General Provision stating ownership and that these terms must be accepted to access and use the blog and allowing discontinuing of access for
any violations.

•No reprinting or other unauthorized use.

•Representation and warranty that user will not use the blog for any purpose that is unlawful or prohibited by the Terms and Conditions

•All statements and materials, whether original posts or comments to those posts, reflect the views of such individual contributors and do
not reflect the views of ________.

•We reserve the right to monitor the material placed on this site and to remove any posting that we deem inappropriate.

•You represent that your contribution is in the public domain or original to you; does not infringe the intellectual property, contractual or
proprietary rights of any third parties; and is not otherwise defamatory or violative of the law.

•Limitation of Liability

•No liability for links to other sites

•Indemnification by user for liability stemming from its posts
 Information Produced by Others
(Terms of Use – Termination of Access)

____ reserves the right at any time and for any reason to deny you access to the blog or any portion thereof,
and to terminate this Agreement. Termination will be effective without notice. Please note that ____ reserves
the right to change the Terms and Conditions under which this blog is made available to you, upon notice,
which may be given by ____ posting such modifications on the blog, by e-mail, or any other reasonable way.
Your continued use of this blog following notice of such modifications will be conclusively deemed
acceptance of any changes to these Terms and Conditions. You agree that notice of changes to this Agreement
on the blog, delivered by email, or provided in any other reasonable way, constitute reasonable and sufficient
notice.
 Information Produced by Others:
Section 512

• Provide notification regarding policies pertaining to repeat copyright

infringement offenses

• Designate an agent for service of proper DMCA Notice and Takedown

requests and Counter-Notifications on the website and with the United
States Copyright Office

• Act largely as a passive conduit and follow required procedures when

provided with proper notification of a possible copyright infringement
 Thank You

Presented by:
Kevin M. Goldberg, Esq.
Fletcher, Heald & Hildreth, P.L.C.
Phone: 703-812-0462
E-mail: Goldberg@fhhlaw.com
Website: http://www.fhhlaw.com
Blog: http://www.commlawblog.com