Presentation at 2013 New Media Expo

1. Blog Wars:
The Changing Legal
Landscape for
Bloggers

2. Legal Background
• Founder of the Internet Law Center
in Santa Monica, California
• Past Co-Chair California Bar Cyberspace
Committee
• Part of US Delegation of Internet Experts
to meet with Leading Chinese “Netizens”
• Part of US Delegation for US-China Legal
Exchange on E-Commerce
New Media Background
• Host of Cyber Law and Business Report
on WebmasterRadio.fm
• Publisher of Cyber Report Newsletter
• Award-Winning Political Blogger

3. “I wouldn’t be so paranoid if
everyone weren’t out to get me.”
Michael McDougal –
“The Paper” (1994)
Ron Howard - Director / David & Stephen Koepp - Writers

4. OVERVIEW

5. Copyright Basics
COPYRIGHT
CLAUSE
To
promote
the
Progress
of
Science
and
useful
Arts,
by
securing
for
limited
Times
to
Authors
and
Inventors
the
exclusive
Right
to
their
respec>ve
Wri>ngs
and
Discoveries
FAIR
USE
DOCTRINE.
.
.
.
[T]he
fair
use
of
a
copyrighted
work
.
.
.
for
purposes
such
as
cri>cism,
comment,
news
repor>ng,
teaching
(including
mul>ple
copies
for
classroom
use),
scholarship,
or
research,
is
not
an
infringement
of
FIRST
AMENDMENT
copyright.
Congress
shall
make
no
law
.
.
.
abridging
the
freedom
of
speech,
or
of
the
press

6. Fair Use Factors
Copyright
Act
• the
purpose
and
character
of
the
use,
including
whether
such
use
is
of
a
commercial
nature
or
is
for
nonprofit
educa>onal
purposes
• the
nature
of
the
copyrighted
work;
COPYRIGHT
TERM
• the
amount
and
substanKality
of
Founders:
14
years
Today:
Life
+
70
years
the
porKon
used
in
rela>on
to
the
copyrighted
work
as
a
whole;
and
• the
effect
of
the
use
upon
the
potenKal
market
for
or
value
of
the
copyrighted
work.

7. 08

8. AP’s
Excerpt
for Web Use
Fee Schedule

9. 10-­‐
11
10
08

10. Stevens Media Declares War
• Copyright
The]:
We’re
not
taking
it
anymore”
– “It
is
our
primary
hope
that
Righthaven
will
stop
people
from
stealing
our
stuff.”
• Media
News
Group
Joins
– Combined
total
of
20
major
daily
newspapers
• Righthaven
– 276
Lawsuits
– $352,500
in
seilements

11. 10-­‐
11
10
08

12. AP v. Meltwater
“Meltwater
News
is
a
parasi>c
distribu>on
service
that
competes
directly
with
tradi>onal
news
sources
without
paying
license
fees
to
cover
the
costs
of
crea>ng
those
stories.
It
has
a
significant
nega>ve
impact
on
the
ability
of
AP
to
con>nue
providing
the
high-­‐quality
news
reports
on
which
the
public
relies.”

13. Newton’s Law
• 2008
AP
Boycoi
and
Retreat
• 2010
Righthaven
Recovers
$352,500
in
Seilements
BUT
.
.
.
Sanc>ons
and
Aiorneys’
Fees
Awards
Force
Righthaven
in
Bankruptcy
Unfavorable
Fair
Use
Rulings
permilng
reprint
of
en>re
ar>cle
where
Righthaven
failed
to
present
evidence
of
market
harm
from
publica>on
by
a
remote
blog
• 2012
Meltwater
Contends
AP
Abusing
Copyright
Laws
and
is
barred
from
recovery
under
doctrine
of
copyright
misuse

14. Fair Use /Open Licensing Resources
AMERICAN UNIV. CENTER
FOR SOCIAL MEDIA ELECTRONIC FRONTIER NEW MEDIA RIGHTS
CODE OF PRACTICES IN FAIR FOUNDATION A CITIZEN'S LEGAL GUIDE TO
USE FOR ONLINE VIDEO LEGAL GUIDE FOR FAIR USE IN COPYRIGHT
LINK BLOGGERS LAW
LINK LINK
CODE OF BEST PRACTICES IN
FAIR USE FOR POETRY
LINK
CREATIVE COMMONS KONOMARK WIKIMEDIA COMMONS
Link Link Link

15. PART
2
THE FEDS

16. FTC Endorsement Guidelines
Video
Clip

17. The Endorsement Guidelines
• §
255.5
Disclosure
of
material
connec>ons.
• When
there
exists
a
connec>on
between
the
endorser
and
the
seller
of
the
adver>sed
product
that
might
materially
affect
the
weight
or
credibility
of
the
endorsement
(i.e.,
the
connec>on
is
not
reasonably
expected
by
the
audience),
such
connec>on
must
be
fully
disclosed.

18. Example
7:
Blogger
Receives
Free
Sample
• Readers
are
unlikely
to
know
that
he
has
received
the
video
game
system
free
of
charge
in
exchange
for
his
review
of
the
product,
and
given
the
value
of
the
video
game
system,
this
fact
likely
would
materially
affect
the
credibility
they
aiach
to
his
endorsement.
Accordingly,
the
blogger
should
clearly
and
conspicuously
disclose
that
he
received
the
gaming
system
free
of
charge.
The
manufacturer
should
advise
him
at
the
>me
it
provides
the
gaming
system
that
this
connec>on
should
be
disclosed,
and
it
should
have
procedures
in
place
to
try
to
monitor
his
pos>ngs
for
compliance.

19. Lo]y
and
Legal?

20. Similar
factors
for
HP/Inkology
FTC No Action Letter (1) Small
number
of
posts;
(2) A
few
bloggers
complied;
(3) Wriien
guidelines
that
“adequately
address
our
concerns”
(4) “The
FTC
staff
expects
that
HP
.
.
.
will
take
reasonable
steps
to
monitor
bloggers’
compliance
with
the
obliga>on
to
disclose
gi]s
they
receive.”

21. Updating DotCom Disclosures
May
2000
–
FTC
Issues
DotCom
Disclosure
Guidelines
May
2012:
FTC
holds
workshop
on
upda>ng
Gidelines
to
address
social
media
ads
(see
below).
FTC
Response
expected
soon

22. WOMMA Standard
• Microblogs
• Include
a
hash
tag
nota>on,
either:
• #spon
(sponsored)
• #paid
(paid)
• #samp
(sample)
• Addi>onally,
WOMMA
strongly
recommends
pos>ng
a
link
on
your
profile
page
direc>ng
people
to
a
full
“Disclosure
and
Rela>onships
Statement.”
This
statement,
much
like
the
one
WOMMA
recommends
for
review
blogs,
should
state
how
you
work
with
companies
in
accep>ng
and
reviewing
products,
and
lis>ng
any
conflicts
of
interest
that
may
affect
the
credibility
of
your
sponsored
or
paid
reviews.

23. PART
3
PRIVATE
DANGER

24. Bloggers Can Be
Easy Targets for Revenge
LITIGATION
RISK
CYBER
HARASSMENT
CRIMINAL
RISKS

25. Being Careful
• Links
can
mi>gate
defama>on
risk
• Insurance
Li>ga>on
• An>-­‐SLAPP
• Be
Careful
About
Merging
Your
Blog
and
Personal
Informa>on
• Call
Authori>es
if
risk
of
harm
Harassment
• Civil
Remedies
• 15
States
Have
Criminal
Defama>on
Laws
• Inten>onal
Copyright
Infringement
can
be
criminal
Criminal

26. Criminal Defamation Today
Red
–
States
with
criminal
defama>on
laws
and
prosecu>ons
Yellow
–
States
with
law
on
books
but
no
recent
prosecu>ons
Colorado
Law
Repealed
2012

27. PART
4
PUBLIC
DANGER

28. Truth Can Be Dangerous
• 2012
was
one
of
deadliest
years
for
journalists
–
133
journalists
killed
• Lesson
taken
by
“Arab
Spring”
is
to
suppress
the
internet
• Bloggers
killed
in
several
countries,
including
Mexico

29. THANK YOU!
Bennet Kelley
Internet Law Center
100 Wilshire Blvd., Suite 950
Santa Monica, CA 90401
www.internetlawcenter.net
@InternetLawCent
Listen to Cyber Law and Business Report
Wednesdays at 10AM PT on WebmasterRadio.fm