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Saturday, July 12, 2003


These lists of new blawgs just don't quit, and the ranks keep getting more and more diverse and exciting. See for yourself by paying a visit to this week's additions to the B&B blawgroll:





Learning The Craft

Blawgers At Large


  • Ron Friedmann is a lawyer who now runs his own law technology consulting firm, Prism Legal Consulting, in Arlington, VA. It's key when those who know law and technology are able to offer that knowledge to their colleagues in the legal profession. The disconnect too often is too wide. [Via Ernie Svenson]


  • The German American Law Journal (English Edition) is a group blog "for information sharing in the areas of German and American law, mainly where the two intersect, vary or intrigue." [Via]
  • Omni Legal News is the blog of LawTalkers, a site for news, rumor, information and gossip about the legal world. [Via]
  • One Big Blawg is a promising-looking new Glenn Garnes project (launched July 11), a collaborative site where lawyers can share knowledge about the jurisdictions where they practice. The site has many features and goals, so here's more from Glenn.


Two Sadly Down

Taking his cue from Stephanie Tai, one of my favorite psuedonymous blawgers D.C. lawyer Omnibus Bill has decided to "shut the hell up before this becomes a problem." This officially is Not Good. Bill further explains.

Friday, July 11, 2003

Drops Of Jupiter (LazyBlawg)

As mentioned here previously, I emailed my co-panelists Phil Wolff's questions to the Law of the Blog panel at the ClickZ Weblog Business Strategies Conference. I quickly got back some responses to some of the questions, so have been working on filling in the blanks. (One of my nonblogging co-panelists remarked that given the speed with which things move in the blog world we'd better get something up post—ahem—haste. My workload in the last month and my pregnancy-induced need to sleep all the time when not working have been the bog-down points, and I figured you could live with that.) I've been asked to remind you that these are the responses of the particular panelists and not their employers (where applicable), and that they do not constitute legal advice. Laws are constantly changing and vary from jurisdiction to jurisdiction, so the principles and cases we discuss might have little or no application to a given situation. You should seek help from a competent lawyer familiar with the laws in your jurisdiction for any particular concerns you may have. So let's get to it, shall we?

Does the blogspace axiom "You Own Your Words" make any legal sense?

Cathy: In my opinion, it does not. The average employee working in a high tech or media position (and many bloggers fit that description!) is required to sign an intellectual property agreement. These agreements are often drafted very broadly, and state that any works of authorship created by the employee that relate in any way to the type of work that the employee does for the employer are considered "works for hire," owned by the employer. The fact that the employee created the work on his or her own time, and using his/her own resources may not make a difference. The smart blogger will not assume anything, but will review all applicable contracts and policies carefully, and get legal advice.

Maury: By operation of law (federal copyright statute) the copyright for any copyrightable work produced by an employee within the scope of his or her employment is automatically vested in the employer and deemed a work for hire. This is true regardless of whether or not any employment agreement states so. Naturally, every situation is fact-specific, so one should get specific legal advice from competent counsel in any given instance.

Denise: Cathy and Maury have covered the employer/employee situation, the moral of which is you should not take for granted that you own anything written in your capacity as an employee; this could include posts to a work blog or work related posts to a personal blog. It pays to think practically by addressing these issues up front with an employer so everyone understands who owns what. I would also refer you to the U.S. Copyright Office's circular on "works made for hire," which is reprinted at GigaLaw. Rick Klau suggests the ultimate caution of not blogging on your employer's site or on your blogging application's site (e.g., Blog*Spot) to best safeguard your control over your weblog writing. Everyone must of course make their own decisions about such things, but I can certainly envision situations where an employee would be fine with blogging on behalf of an employer. I also don't think Rick meant to suggest that by posting to Blog*Spot or any other blog host domain you are ceding "ownership" of what you write to anyone else. As a practical matter though, if that host should crap out and you haven't backed up your site, you are not going to be a happy camper.

My answer to Phil in the non-employment context then is yes, if you have not licensed or otherwise transferred ownership to your work. The "You Own Your Own Words" concept has at least two sources: U.S. copyright law and longstanding Internet custom. Under U.S. copyright law, "Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." [From The U.S. Copyright Office FAQ] This means you own the exclusive rights to the work unless you transfer or license those rights in some manner. U.S. copyright law also recognizes that individual contributors to a collective work retain the copyrights to their distinct contributions. With these considerations in mind, it is not difficult to see why the Well's Member Agreement (last amended 1997), for example, specifies that each contributor owns his or her own words. (For more about the Well, see Katie Hafner's book). Slashdot and OSDN adopt a similar approach. (Slashdot: "Comments are owned by the Poster." OSDN Terms of Use: "With respect to text or data entered into and stored by publicly-accessible site features such as forums, comments and bug trackers...the submitting user retains ownership of such OSDN Public Content....") In what would seem to be recognition that individual contributors are likely to retain copyrights in the material they submit absent other arrangements, AlwaysOn does not claim ownership of user-contributed writing but requires users to grant a license to the site:

[B]y posting, uploading, inputting, providing or submitting your Submission you are granting AlwaysOn and necessary sublicensees permission to use your Submission in connection with the operation of the AlwaysOn Site/Services, including, without limitation, the license rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission...

As a final point in this discussion, I'd like to mention my co-panelist John Palfrey's post of today's date which considers the possible impact of RSS feeds on otherwise applicable copyrights. John urges tool developers to make it easy to embed Creative Commons license information in a syndication feed; I second that plea, as well as John's point that the more specificity bloggers can supply about their copyright intentions, the fewer the opportunities for confusion and disputes. John also wonders (in true exam-giver fashion) whether an implied license to republish might be created just from the act of supplying a feed—even where the feed specifies that all copyrights are retained by the weblog author. Of course, all of this is up in the air because no court I know of has considered or ruled on such questions, but my own take on that last suggestion is the finding of an implied license to republish would be a stretch, and a departure from the general rule (at least under U.S. law) that copyrights are not lightly surrendered. Publishing something in HTML makes it readable by a browser, but does not in and of itself do away with copyrights or result in an unfettered right to republish. I would think the same sort of logic would apply to publishing something in RSS/XML/RDF; doing so makes the material readable by a host of other applications, but should not, in the absence of an express license, connote republication rights beyond those afforded by the fair use doctrine. (This is like finals all over; how'm I doing, Prof?)

So yes, the blogspace axiom "You Own Your Own Words" makes legal sense, but need not apply in every situation. Your ownership rights can be affected by your actions or agreements, so it's wise to pay attention to these things.

What does European law say about blog ownership?

Sorry, all of us practice in the U.S. and are not up to speed on how European law might vary. There are a host of EU blawgers out there, and I have LazyBlawged this in hope of further input.

What license might be acceptable to an employer that would let an employee also preserve some rights in a blog? The ability to compile a book? The non-exclusive right to publish the blog from elsewhere? A clear definition of proprietary that doesn't include every thought written down? Using a Creative Commons approach, what are the big tradeoffs?

Cathy: Many of my clients have been quite willing to permit reasonable, clearly-defined carve-outs from their standard Intellectual Property agreements. You don't ask, you don't get! The devil, of course, is in the details. For example, the employer might not want the employee to be able to say anything about the employer or the employer's business on his/her blog.

Denise: See the work for hire discussion above. I agree with Cathy that these things can and should be addressed between employee and employer. Someone writing for an employer might want to cross-post to another, offsite blog, or, as you suggest, include the writing in a book. All sorts of variations on this theme are possible and conceivably could be negotiated. Regarding the last part of this question, I'm not sure I get it. Are you asking what the tradeoffs are for using Creative Commons licenses in general, or whether the Creative Commons approach could be adopted to fit relations between employers and employees? If the former, by granting any license you are authorizing specified uses of your work that otherwise would be barred by copyright law. There are all kinds of reasons you might want to do this, and I'd refer you to the Creative Commons site for more on that. If the latter, yes, an employer's rights in works for hire can be licensed, including by way of a Creative Commons license. If a Creative Commons license is used, then the license will apply broadly to any "individual or entity exercising rights under [the] License who has not previously violated the terms of [the] License with respect to the Work, or who has received express permission from the Licensor to exercise rights under [the] License despite a previous violation." This presumably would include the original employee-author, in the absense of any other arrangements.

If I post to my personal blog from work, can my employer claim ownership?

Cathy: That's a very fact-specific inquiry. The best answer I can give is, "maybe." I wouldn't assume that they can't!

Denise: Common sense tells me no, but consider this: what if the employer bars use of the Internet (including perhaps email, if you're posting that way) for nonbusiness purposes on company equipment and time, and/or (if the blog generates $$) bars you from multiple employment? In the latter situations, I could see an employer having an argument that unauthorized paid time spent on a personal blog was akin to embezzlement. The employer might not "own" the blog writing per se, but might nevertheless have an action for damages (and maybe not just for the paid value of the time you spend; what if, for example, you blogged the next Harry Potter?).

Who owns the comments on my blog?

Denise: See my part of the discussion above about "You Own Your Own Words." My take on it is your commenters do, unless they agree to license their submissions to you. And, under the Ninth Circuit's recent decision in Batzel v. Smith, your commenters probably not only own their own comments but are solely responsible for the information those comments contain. If that information is actionable (because it is defamatory, fraudulent, or otherwise violative of someone's rights), under Batzel, while the commenter can be sued, you probably cannot be sued for permitting its publication on your site and/or for not taking it down. Batzel turned in large part on whether a reasonable site operator could conclude that information provided by another was intended for Internet publication. While this might be an open question in the case of an email sent to a Web site author (in Batzel the case was remanded to the district court for further evidence on this point), it seems pretty straightforward in the case of a comment submitted via a blog comment form. Remember that as yet Batzel only is the law in the 9th Circuit of the United States (map). Other jurisdictions may differ.

If my blog is HR compliant, but I link to unsanitary places (Rageboy with offensive language, for example), is that creating a hostile workplace?

Cathy: This is another very fact-specific inquiry. For a purely personal blog, it seems like a real stretch, but one could probably come up with a set of facts where it might. Among the factors to consider are:

  1. were the linked comments sufficiently severe and pervasive to rise to the level of a hostile environment under the applicable state's law?
  2. how was the person claiming a hostile environment exposed to these offensive comments? Did it arise out of, implicate or effect their job?

Denise: Can a personal blog, not on a company site, create a hostile work environment for an employee? (Say there's a manager with an S&M fetish who links to such material from a personal, non-company blog.) I could certainly see someone bringing it up in a harassment claim. Could it form the primary basis for one? I could see someone giving it a shot, but I'm skeptical about the chances of success for such a claim. See generally Professor Eugene Volokh, Freedom of Speech vs. Workplace Harassment Law—A Growing Conflict. I'd be interested to hear from employment lawyers out there—which I'm not—about whether there is precedent for this sort of thing in the non-blog context.

"The best soy latte that you ever had, and [us]."

For anyone interested in reading the blogged accounts of our panel at the conference, my About page now includes links to those I found. If I missed any, let me know. And thanks again for your patience as I post these responses about a month after the questions initially were asked!

[Update]: Dr. Karl-Friedrich Lenz supplies a European perspective.

Thursday, July 10, 2003

Possible Baby Names: Hammerhead?

From Babycenter: "'And then one day I had this feeling of a goldfish swimming around my belly, and immediately I was certain that it was my baby.' Be warned that as the fetus grows, that goldfish may start to feel more like a shark attacking your rib cage."

It's official, too much of this in the past two days to ignore. A regular chip off the old dorsal fin!

Positively Keebleresque

One of copyright's bestest little elves is headed West! This calls for a cookie.

Wednesday, July 09, 2003

Deck Chair Shuffle

Here's the EFF's take on why the revised Kelly v. Arriba Soft (PDF) decision issued Monday is good for the development of link law. Fred von Lohmann: "By revising its ruling, the court removed a copyright iceberg from the main shipping lanes of the World Wide Web." [Via JD Lasica, who is looking for examples of participatory journalism.]

From The "It Had To Happen" Department

Or did it?

"This week on Fresh Gear, we'll examine the Brava, a high tech, non-surgical breast enhancement system promising increased bust size in a matter of weeks." (Another non-surgical breast enhancement system? Pregnancy. But it has, um, side effects.)

The earliest edge: "BabyPlus children have an intellectual, developmental, creative, and emotional advantage from the time they are born." (By the way, better brush up on your survival skills if you're the jokester who subscribed me to Fit Pregnancy. I don't so much mind the magazine, but you never stopped to think about the direct mail lists you'd be subjecting me to as a subscriber, now did you?)

I'm working tonight and tomorrow on finishing the legal panel's responses to Phil Wolff's good questions from the Weblog Business Strategies Conference, the first of which—"Does the blogspace axiom 'You Own Your Words' make any legal sense?"— will include my take on how Batzel shades this. Thanks for bearing with.

Tuesday, July 08, 2003

Lawlor Wants You (LazyBlawg)

John Lawlor is conducting research on blogging lawyers, and if that's you he would love 15-20 minutes of your time for an interview. He tells me he plans to use the material for surveys, seminars, books and other educational material about blogging. Shoot him an email if you can lend a hand.

Headline Screws

Mark Glaser has an article in today's Online Journalism Review, "Libel Ruling Provides Protection for Forums, Not Individual Bloggers:" "Putting a word such as 'Weblog,' 'blog' or 'blogger' into your news story's headline seems to do strange things to people. First, every Weblog known to humanity has to link to your story...."

In addition to succumbing to the inexorable link compulsion Mark notes, I mention it because the article assesses headlines relating to the Ninth Circuit's recent Batzel decision and finds them to have been a little hasty and overzealous in suggesting the case might afford blanket libel protection for bloggers: "What really happened in this ruling is much more complex than that and only protects third-party content that's being passed along to an e-mail listserv, a forum or perhaps a Weblog's comments section. When a blogger starts making original commentary, he/she is liable for these comments."

Mark's right on when he points out that bloggers—and anyone passing along third party comments—who care about accuracy and credibility would do well to take a page from the "real" journalists: "In the end, the real onus is on [defendant] Cremers and the individual publisher/writer/editor. Under this ruling, the publisher would be protected from libel for reprinting e-mails intended for publication—even if the content is libelous. But that publisher would be setting a poor example for online journalists by not making the most basic checks of the material to make sure they're not injuring someone by disseminating the story." I assume Mark would include in those basic checks affording the subject the opportunity to address and respond to the assertion. According to the Batzel opinion, Ellen Batzel did not learn of the allegation that she owned looted art until several months after the posting.

(Of course it's always fun to tweak IBM. The courts just might not be there for you whenever Big (B)Lou comes a knockin'.)

Bound, Gagged And Precedential

It took no time at all for various Slashdotters to correct their original tipster on the Kelly v. Arriba Soft decision, concerning the fact that most decisions of the United States Courts of Appeal are resolved by three judge panels and nothing about such a resolution deprives an opinion of binding and precedential effect. Several commenters quickly jumped in, and self-flagellation ensued scarcely three hours after the posting.

It's Quiet—It's Too Quiet

Oral argument today, back soon. (You haven't lived until you've tried finding something appropriate to wear to the Court of Appeal when you're pregnant...)

Meanwhile, I see from Marty that the Kelly v. Arriba Soft (PDF) decision has just come down, approving use of copyrighted images as thumbnails in image search results (although the holding likely is broader than that). There were also some interesting linking analyses in this case (see my posts from 2/12/02 and 4/9/02). It's definitely on my reading list for the afternoon. From the intro: "This case involves the application of copyright law to the vast world of the internet and internet search engines."

Sunday, July 06, 2003

"Controlled Breathing, In The Extreme"

Vanessa Grigoriadis reports on the latest in the Bikram yoga copyright wars. From the article—

Dana Flynn (owner of the Laughing Lotus Yoga Center in New York): "Bikram is a bit of a pirate."

Bikram Choudhury (referring to the owners of the studio where I practice, whom he sued): "They are on the street today. They are closing their school. They cannot say my name. She cannot teach my yoga anymore, because she lost her license."

While I can't debunk the first quote I can debunk part of the second, having just come from an excellent class taught by Kim Morrison, the "she" in question. And no, it wasn't taught in the street but in their comfortable studio, which seems to be doing just fine.

Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.