Guide Through the Legal Jungle

Copyright Protection for Internet Content. Part Two. - Who Owns the User Comments on Your Blog?

This is Part Two in the blog series, Copyright Protection for Internet Content.

Most blogs have an interactive element and invite readers to submit comments to each of the postings. If the comment qualifies for copyright protection, the person submitting the comment owns that copyright. Some comments may not qualify for copyright-protection because, for example, they are too short or consist only of factual information. Here are examples of comments that would not qualify for copyright protection:

“I Agree!” - Too short for copyright protection

“The last three teams to win the Super Bowl were the Seattle Seahawks, the Baltimore Ravens, and the New York Giants.” – Just a fact, which on its own is not eligible for copyright protection

Most agree that the blogger has an implied license to post reader comments even if the blogger has no written terms of service giving the blogger an express license to post the comments. Sometimes, the blogger will want to do more with the comments than simply post them in the blog comment section. For example, a blogger might want to use some comments in marketing materials for the blog or in a subsequent book based on the blog. To take such actions, the blogger should have provisions included in the blog’s terms of service authorizing such use. For example, here’s a provision that the fictitious blog, aptly titled the VeryBestBlog, might incorporate into its terms of service:

The VeryBestBlog does not claim ownership of comments or any other content you submit. However, by submitting a comment to the VeryBestBlog, you grant us the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, and display your comment, and to incorporate your comment in other works in any form, media, or technology now known or later developed.

Copyright Protection for Internet Content. Part One. – Some Basics

To what extent does copyright protect internet content such as blog comments, tweets, and online reviews? That’s the topic of this blog series. In this Part One of the series, I share a few copyright basics.

When Does Copyright Protection for Internet Content Begin?
Under current United States law, you have a valid copyright as soon as you create your work. You are the copyright owner of any original work you post online – provided that your content is eligible for copyright protection. Registration with the U.S. Copyright Office is not required for you to hold a valid copyright in your online work; however, registration does provide a number of benefits. With some limited exceptions such as copyright fair use, the copyright owner is the sole person who may use the copyrighted work or authorize others to use it.

What Does Copyright Law Protect?
In copyright jargon, copyright protects original works of authorship that are written down, recorded, or otherwise fixed. It takes very little to meet the originality threshold for copyright protection. Your work is original as long as you do not copy it from another source. That means copyright protection extends to a variety of offline and online works including books, poems, magazine articles, artwork, songs, sound recordings, designs and, of course, websites and other online materials.

What Does Copyright Law NOT Protect?
Not everything is eligible for copyright protection. Things that are not eligible for copyright protection include the following:

Ideas. Ideas are not protected by copyright but the expression of the idea is. Unfortunately, separating the “idea” from the “expression of the idea” is often subjective and not necessarily intuitive.

Names/Titles/Short Phrases. Names, titles, and short phrases lack the originality and creativity required for copyright protection. However, under certain conditions, they may be protected by other areas of law such as trademark and unfair competition laws.

Facts. While raw facts by themselves are not copyrightable, a compilation of facts may be eligible for copyright protection. Hence, a website that presents factual data – such as daily deals available for products across the internet – does not hold a copyright in the data itself but might have a copyright in the way it compiles or presents the data.

Up Next
In the next posting of this blog series, I’ll discuss who owns the user comments on a blog.

Should Doctors “Friend” Their Patients on Facebook and Other Social Media?

The Federation of State Medical Boards just released guidelines for how doctors should (and shouldn’t) use social media. You can read the Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice here.

Some Guidelines Reflect Common Sense

Many of the guidelines are reasonable. For example, of course doctors should not divulge patient confidences online, post insulting comments about identifiable patients, or provide specific medical advice (as opposed to general medical information) to people who are not their patients.

Other Guidelines Are More Difficult to Grasp

However, other guidelines seem far too conservative. The guidelines recommend that doctors avoid “friending” or interacting online on a personal level with current or past patients. While that prohibition might be appropriate for some doctor-patient situations (e.g., psychiatrist-patient), making social friending a universal no-no seems overly cautious as well as slightly arrogant.

Many of my doctors send me newsletters – either via email or regular snail mail. Those newsletters contain a combination of the doctors’ medical tips, professional achievements, and personal news such as photos of the doctor at an event or on vacation. As long as the social media interaction does not extend into harassment or other offensive contact, what is the problem with those doctors sharing the same information via social media networks?

Tell me what you think about this topic in the comments below.

When Does Cybergriping about a Business Cross the Legal Line?

If people are posting negative comments online about your business, can you do anything about it? It depends.

Not every negative statement posted online is actionable. Criticizing a person, product or service online is often referred to as cybergriping – and it is perfectly legal as long as the cybergriper sticks to the facts.

The First Amendment protects a customer’s rights to share with others the truth about any bad experiences he has had with a business. In many cases, the disgruntled customer may even use a domain name that mimics and parodies the business’ domain name – JonesCarpetCleaningIsAwful.com.

However, the cybergriper steps outside legal boundaries when his criticism includes false statements about the business and the business suffers harm as a result of the false statements. In that case, the business may have a valid legal claim that’s worthy of a lawsuit – or at least a cease-and-desist letter.

What Happens When Your Smartphone Starts Monitoring Your Moods?

A smartphone that recognizes your mood just might be on the horizon. A recent San Diego Union Tribune article “Can smartphones get attuned to your moods?” discusses current research that would structure your music playlists based on your mood. The method determines your mood by analyzing data from sensors in the smartphone - the accelerometer, the GPS device and the microphone. Researchers are also considering getting data from monitoring keywords in the emails you send and the content of the websites you visit.

The article briefly quotes me on the privacy issues such monitoring would raise – of which there are several.

Is It Legal for Your Smartphone Provider to Collect This Information?

At the moment, internet and digital privacy is mostly self-regulated. Hence, there’s no federal law stopping the people behind your smartphone from monitoring the websites you visit and your location. However, there are lots of government officials and advocacy groups who would be happier if providers got consumer permission for such monitoring. Monitoring a person’s emails or phone calls without their permission is another matter and would  likely violate wiretapping laws, the Computer Fraud and Abuse Act, the Stored Communications Act, and other state and federal laws.

Should Consumers Grant Permission for Smartphones to Monitor Their Moods?

Maybe. There are pluses and minuses to allowing your digital equipment to have sufficient information about you to make accurate recommendations for the music, books, products, travel plans, job opportunities, etc. that may interest you. From a privacy perspective, the minus of having too much personal information about you available in the digital world is that the information may be used in ways you don’t anticipate. When information is collected about consumers, there is always someone who wants access to that information. Whether or not the people/institutions can legally access that information depends on who they are and why they want the information.

Writing Effective Disclaimers for Your Twitter Account

It has become increasingly common for companies to have policies concerning employee online activities. I’ve previously blogged about what a company social media policy may legally require.

Most company social media policies require that if the employee identifies himself as an employee of the company, the employee must include a disclaimer such as the following:

The views expressed on this post are mine and do not necessarily reflect the views of the ABC Company.

But how does one include that 102-character disclaimer on a medium like Twitter that allows only 140 characters per message? Many people include the disclaimer as part of their Twitter profile. Here are some of the effective short disclaimers I’ve recently seen:

• Tweets independent of ABC Company

• Opinions my own

• Tweets my own, composed for free.

• Tweets in personal capacity

• Links/RTs are not endorsements.

Sounding Off Online . . . and Staying Out of Trouble

Telling it like it is online can generate accusations of defamation, cyber bullying, trademark infringement, and other legal claims with long names. Here are some of the tips I share in The Cyber Citizen’s Guide Through the Legal Jungle to help you side-step the potential negative consequences of speaking your mind online:

 

1. Be Yourself. While you can post your online remarks anonymously, you should not pretend to be someone else. Online impersonation can be a crime.

2. Stick to the Facts. Your risks of a defamation claim increase if you stray from verifiable facts when you discuss real people and real events. Changing the names is not always enough.
   
   
3. Solicit Comments. If you offer news or public affairs information through a blog or online forum, offer the real people and companies mentioned an opportunity to confirm or deny any allegations. Exercising such journalistic objectivity may help you qualify for protection under laws such as the reporter privilege and shield laws.
   
   
4. Respect the Limitations on Using Other’s Trademarks. It is generally legal to use specific company names and product brand names in your online commentary. However, you cannot use those names in a way that makes people mistakenly think you are affiliated with or sponsored by the targeted company.
   
   
5. Consider the Impact on Your Job. Your employer may legitimately fire you for your online postings if you disclose any of your employer’s confidential information, make defamatory comments about your employer, threaten people in the work place, or otherwise violate your employer’s social networking policies.
   
   
6. Disclose Any Quid Pro Quo. If you post reviews for which you receive free sample products or other compensation, federal guidelines indicate that you should disclose that fact. Federal guidelines also include the expectation that you provide truthful and substantiated descriptions of the products you review.

 

 

How Your Online Activities Impact Your Job Prospects

Many companies have policies concerning employees’ online conduct. (See the blog posting, What a Company Social Media Policy May Legally Require). Failing to know and follow your employer’s social media policy may get you booted out of your current job and make it difficult for you to secure a new job.

As a job seeker, you do not want any potential employer seeing social media postings in which you disclose a past employer’s confidential information or in which you bad-mouth a past employer.

Some internet infractions are illegal activities for which your employer can justifiably fire you – and perhaps even sue you or press criminal charges against you. They include disclosing your employer’s confidential information, making defamatory comments about your employer, and threatening people in the work place.

Other infractions are more akin to social blunders and simply make you look like an oaf no one would want to hire. This category of infractions include using your work email address while hunting for a new job.

Internet Legal Trends to Watch. Part 5: Net Neutrality

Congress and the Federal Communications Commission (FCC) are headed to a showdown over how and whether the FCC should regulate the flow of information over the internet. The FCC adopted a net neutrality order last December.

What Is Net Neutrality?

Very simply, net neutrality means setting traffic rules for the flow of data on the internet. When the net is neutral, all information regardless of its source is treated equally. There are no gatekeepers or roadblocks so reaching John Smith’s website is as easy as reaching the website of Google, Facebook or the Wall Street Journal.

Net neutrality is a plus for for consumers and start-up companies because net neutrality guarantees an even-playing field for all online content. On the minus side, analysts and broadband companies complain that internet regulations forcing net neutrality will inhibit capital investment, deter innovation, raise operating costs, and ultimately increase consumer prices

What Has the FCC Proposed?

The FCC net neutrality order in part provides that landline broadband providers can’t block legal websites. The order imposes fewer restrictions on wireless carriers than on wired carriers. While the order discourages landline broadband providers from offering faster delivery of data for money, the order doesn’t explicitly prohibit them from doing so.

Where Does Net Neutrality Stand?

There are questions about whether the FCC has the authority to regulate the internet. Verizon has already filed a lawsuit arguing that the FCC does not have the right. Both Democratic and Republican members of congress have threatened to block the FCC’s net neutrality regulations.

Internet Legal Trends to Watch. Part 4: Copyright’s Race to Keep Up with the Internet?

Along with the entry of internet access into more homes and into our daily lives comes more opportunities for piracy and new attitudes about copyright law. In response, content owners have tried to squelch the unauthorized online sharing and copying of their copyrighted content.

Starting with the RIAA

Beginning in 2003, the Recording Industry Association of America (RIAA) sued or threatened to sue over 35,000 individuals who participated in P2P file sharing of music. Most of the RIAA lawsuits never went to trial and resulted in settlements in which the accused file sharer paid a settlement fee of several thousand dollars. Due in part to complaints against RIAA’s methods and the failure of the lawsuits to deter piracy significantly, the RIAA has phased out its strategy of suing individual file sharers.

Righthaven Follows

However, other content owners have picked up where the RIAA left off. Righthaven is among the most notorious. Since last year, Righthaven filed over 200 copyright infringement lawsuits against bloggers and website owners for posting newspaper articles without permission. Those hit with Righthaven lawsuits include former senate candidate Sharron Angle and the Democratic Party of Nevada. For a blow-by-blow account of the Righthaven lawsuits, read Steven Green’s stories, a Las Vegas Sun reporter who has written extensively about the lawsuits. Another content owner trying its hand at massive copyright infringement lawsuits is Third World Media, which has tried to sue 1,243 individuals who downloaded copies of the pornographic film, Tokyo Teens.

What These Cases Mean for Everyday Internet Users

The Righthaven lawsuits may provide more guidance on how far one can push fair use online. Most of the people sued by Righthaven who attempt to defend themselves rather than settle claim their use of the articles qualifies is a fair use. That argument worked in the case of a realtor who used only eight sentences of a thirty-sentence news article. However, most of the Righthaven defendants have copied an entire article. For them, it is more difficult to make a persuasive fair use argument.

Many have also criticized Righthaven for filing lawsuits without first issuing a DMCA takedown letter. While the majority of content owners would likely send a takedown letter prior to filing a lawsuit, there is no statutory requirement that they do so. Hence, it will be interesting to see how this “no warning” argument resonates with the courts.