Skip to navigation

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.

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.