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Thursday, April 27, 2006

BlogLaw Notes: Raymond T. Nimmer

This post and several to follow represent tidbits from the very worthwhile Blog Law and Blogging for Lawyers conference that caught my attention enough to write down. (I didn't make all the sessions, and understand Mary Hodder's insights on the Live Web in particular rocked.)

Raymond Nimmer on Copyright:

  • As to who owns a blog, Prof. Nimmer said copyright assumes the designer does (i.e. the person who does the template, etc.; not the substantive posts). Not sure where this comes from, didn't get the chance to follow up. Deserves further ventilation.
  • Re enterprise blogging, an astute audience member asked how the work for hire doctrine would apply to a law firm's equity partner (i.e., a business owner as opposed to an employee). Professor Nimmer didn't know; do you?
  • Absent an express agreement, Professor Nimmer thinks commenters and potentially other third parties making contributions to a blog probably grant an implied license. Professor Nimmer thinks a comment policy is preferable, specifying what rights commenters are granting.
  • Professor Nimmer has Site Usage Terms and thinks something like this helps the site owner(s)/blogger(s) be on firmer ground as to what (s)he/they can or cannot do. Responding to audience questions, the Professor said the better reasoned authorities don't require a click-through to make such terms enforceable, just adequate notice, and that there's no case law about what precisely (location-wise) constitutes adequate notice. (Evan Brown mentioned an Illinois case taking a common sense approach to notice adequacy.)
  • Copyright-free stuff: laws (Veeck case), photos of famous paintings (Bridgeman case), compilations of facts (Feist).
  • There's a distinction between ownership of a compilation and ownership of its constituent copyrighted works. Individual contributors retain those rights.
  • Recent 7th Circuit BMG v. Gonzalez case held that downloading is infringement, not fair use — even as to items you eventually purchase.
  • Professor Nimmer thinks the DMCA's safe harbor would trump MGM v. Grokster on "lack of knowledge" vs. "inducement." (Context.) I'll be interested in what Ian Ballon has to say on this next week; he and I are on a panel on May 4 ("Hot Copyright Issues in the Digital World"), and his specific topic is "Beyond Grokster: Secondary Liability of Technology Developers and Providers and ISPs."

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