Evan Brown on Defamation:

• Evan reminded me after his talk that about a year ago I sent him a link to a funny California defamation case involving an online list of "Top Ten Dumb Asses," on which the plaintiffs were "listed as the number 1 and number 2 dumb asses, respectively." He opened by discussing this case and the differences between permissible opinion and actionable defamation.
• Evan mentioned the fair reporting privilege defense to defamation claims, and also that consent is a defense. That struck me as one that could get interesting in a blogging case (e.g., what degree of consent might a link back to the allegedly defamatory remark convey?)
• Discussion of New York Times v. Sullivan and the increased burden on a defamation plaintiff who is a public figure, i.e.: in order for the plaintiff in such a case to prevail the statement has to be false and made with actual malice. Dennis Crouch wondered about bloggers as public figures (here's a musty but related B&B post), and Evan pointed out there are cases where a plaintiff has been found to be a public figure "for a limited purpose."

[Technorati tag: bloglaw]

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."

[Technorati tag: bloglaw]

A couple of upcoming events will focus on practical considerations concerning independent film/video, and business podcasting, respectively:

• May 4-5, the 2006 San Francisco Film & Video Makers Conference (San Francisco, CA): "[L]earn about the new San Francisco film incentives, new film funds established to invest solely in independent films and new distribution channels for independent film makers that are changing the economics of film making."
• June 20-21, the Corporate Podcasting Summit (Redwood City, CA): "[T]he absolute 101 on Enterprise Podcasting."

(Proving once again you can make this stuff up!)

Lauren Gelman's slides on network neutrality, and Raymond Nimmer's on blogs and copyright [update: and more from Mia Garlick, Mary Hodder, and Ray Hixson] are available here.

[Technorati tag: bloglaw]

Jason Calacanis and Weblogs, Inc. are Blogging Milken (more). Look for their coverage on Wednesday to include Cathy Kirkman on Intellectual Property and the New Video Revolution.

Some pictures from the Blog Law and Blogging for Lawyers conference. Notes to follow; meantime see Joe; David; Cathy; Dennis; Kevin.

Lunch Gang

[Technorati tag: bloglaw; flickr tag: bloglaw]