Co-Blogging Law
Eric Goldman (egoldman@gmail.com)
Harvard Law School
April 28, 2006
1. Law doesn’t handle coordinated multi-person activities well
a. Internet enables coordinated activities that do not neatly fit within traditional labor models—open source, corporate volunteers (like Epinions catalog editors), Wikis, co-blogging
i. I define co-blogging inclusively to cover joint/group blogging and guest blogging
ii. Many of the most popular blogs qualify
iii. Almost a dozen of the blogs represented on this panel qualify as joint/group blogs
b. Legal system overlays poorly on these activities
i. Can be partnership: “an association of two or more persons to carry on as co-owners of a business for profit”
Example: joint blog with advertising revenue
ii. Can be employment: “right to control the manner and means by which the product is accomplished”
Example: guest blogger if assigned a specific number of posts and given a style guide
Employment analysis can be very results-driven
2. Co-bloggers may be in for surprises
a. Liability
i. 230 is critical defense for bloggers, but plaintiffs may be able to bypass it in co-blogging
1. Expect plaintiffs to characterize bloggers as partnerships or employment arrangements
ii. Variety of circumstances where co-bloggers could be contributorily or vicariously liable for copyright infringement
b. Ownership
i. Bloggers may not own their posts or may not be able to withdraw/block further publication
1. Owned by others if blogger is employee or partner
2. If contribution to collective work, blogger can’t revoke publication rights per 201(c)
ii. Bloggers may be obligated to compensate guest/joint bloggers for continued publication
1. If bloggers are in partnership, create joint work of authorship, or are deemed joint owners under copyright law
3. Recommendations
a. Good news: although liability looks scary, blog lawsuits will be rare
i. Many co-bloggers will sort out the problems
ii. Usually not enough value to litigate over
iii. As Glenn points out, the unwanted attention from a blog-related lawsuit will deter plaintiffs
b. But news isn’t all good—as much as we may hope to avoid legal intervention in the blogosphere, it will occur
i. Blog lawsuits will be brought
1. People will fall out of love, die, do stupid things or make irrational decisions
2. Third parties (plaintiffs, government actors) will force the issue externally
ii. When judges are confronted with rare blog lawsuits, judges should be sensitive to the blogging milieu
1. Judges will have a lot of discretion applying multi-factor tests, so there is room for them to be gentle
c. Co-bloggers should take some prophylactic steps
i. Put in place co-blogger agreement or form limited liability entity
1. Definitely required if blog is generating revenue
ii. Guest blogger relationships should be documented
iii. Bloggers might choose to register for 512 safe harbor ($30, simple form)
iv. Don’t engage in unsafe blogging practices—trust your co-bloggers
v. We as law professors should lead the way in maintaining good legal hygiene