Blog Wars at New Media Expo

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

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.

AP’s  
Excerpt  
for Web Use  
Fee Schedule

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 Resources

AMERICAN UNIV. CENTER
FOR SOCIAL MEDIA ELECTRONIC FRONTIER NEW MEDIA RIGHTS
CODE OF PRACTICES IN FAIR FOUNDATION  A CITIZEN'S LEGAL GUIDE TO
USE FOR ONLINE VIDEO LEGAL GUIDE FOR FAIR USE IN COPYRIGHT
LINK BLOGGERS LAW
LINK LINK
CODE OF BEST PRACTICES IN
FAIR USE FOR POETRY
LINK

CREATIVE COMMONS KONOMARK WIKIMEDIA COMMONS
Link Link Link

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.

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.

PART
3

PRIVATE
DANGER

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

PART
4

PUBLIC 
DANGER

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

Blog Wars at New Media Expo

More Related Content

What's hot (20)

Similar to Blog Wars at New Media Expo (20)

More from Internet Law Center (20)

Recently uploaded (20)

Blog Wars at New Media Expo