A Legal Primer for Bloggers - #BIN2010

A Legal Primer for Bloggers

(c) Kenan L. Farrell 2010

Blog Indiana 2010

Kenan L. FarrellIntellectual Property and Entertainment Law

[email protected]

www.KLFLegal.com



@VonnegutLibrary @IDADA

@UptownLocals @IndyBlues


indianaintellectualproperty.wordpress.com

Today’s AGENDA•Intellectual Property (Copyright, Trademark)

•Criminal Law

•Defamation (Truth as Defense, Public v. Private Figures)

•Privacy (Publication of Private Information, “Newsworthy”)

•Net Neutrality

•Wikileaks

•Corporate Blogging

•Business Entity Formation for Professional Bloggers


Laws vary state-by-state. You publish to all states.

You may be subject to 50 different laws.


Copyright 101

Copyright are exclusive rights granted to the creator of an original work

Bundle of Rights1) reproduction of the work2) preparation of derivative works3) distribution of copies of the work4) public performances of the work5) public display of the work.


Dear KLF Legal,

• What obligation do I have to give attribution to an original source?

• To what extent can I use the content of a news story?

• Do I have any obligation to not delete comments from my wall/comment board?


Internet – no barriers to copying


The Internet Is Built on Copying


It’s Technically Infringement, but it may be a “Fair Use”

Fair Use factors:• the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes;

• the nature of the copyrighted work;

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• the effect of the use upon the potential market for or value of the copyrighted work.


The law favors “transformative” use.


“transformative” - the original use, purpose, or intent of the material has been changed significantly into something substantially different in both appearance and objective

Copyright Fair Use

• Comment and Criticism - If you are commenting upon or critiquing a copyrighted work - for instance, writing a book review - fair use principles allow you to reproduce some of the work to achieve your purposes.

• News Reporting• Teaching• Research• Parody

– 17 USC § 107.


How to avoid copyright infringement

CREATE 100% ORIGINAL CONTENT

USE CONTENT LICENSED FOR REUSE*

GIVE CREDIT WHERE CREDIT IS DUE!


*



Time, Politico rip off Rolling Stone, publish PDFs – 6/28/10

Copyright Troll


Litigation Updates


Google Wins Viacom Copyright Lawsuit –

6/23/10• YouTube’s “mere knowledge”

of infringing activity “is not enough.”

• YouTube had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.

• DMCA Sec. 230 - limiting the liability of on-line services from copyright infringement of their users


Trademark 101

• A trademark is a 1) distinctive sign or indicator 2) used to identify products or services as originating from a unique source, and 3) to distinguish its products or services from those of other entities.

Reduces consumer confusionReduces unfair competition


Pepsi®, McDonalds®, Apple®or


Trademark 101

Get your domain names

At bare minimum, do a Google search for similar marks

When budget permits, seek federal registration

Always use a proper trademark notice (™ for common law rights, ® if you’ve obtained registration)


Nominative Fair Use

You are permitted to use somebody else’s trademark if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you.

"shopping for books at Walmart”

"playing a Playstation game”

"wearing Oakley sunglasses."


Criminal Law


tinyurl.com/reallydumbfacebookposts


Comments

You have a First Amendment right to publish your blog in the way that you want, which includes the right to choose who may participate in discussions on your blog. You’re able to delete comments that are offensive or off-topic.

Respect the voice of others.


http://www.march18.org/

On March 18, 2009, Omid Reza Mir Sayafi, Iranian blogger and journalist, died in Evin Prison in Tehran. Each March 18 will stand as a day of memorial to Omid and commemorate the risks taken by bloggers around the world to tell their stories.

#IranElection


Recent Headlines

• China blogger who helped quake victims jailed – 11/23/09

• Cuban court overturns blogger’s prison sentence – 5/18/10

• Will There Be Justice for Murdered Egyptian Blogger? – 7/28/10

• Burmese blogger's prison term reduced to 12 years – 8/12/10

• Nokia Siemens says it didn’t help Iranian government spy on blogger – 8/20/10



www.eff.org

Wikileaks


Net Neutrality

Really really really F’d.

The First Amendment issue of our time.

Neutrality - No restrictions by ISPs and governments on content, sites, platforms, on the kinds of equipment that may be attached, and no restrictions on the modes of communication allowed


PRIVACYPublication of private information (Indiana):• A public disclosure of private

information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities;

• to persons who have no legitimate interest in the information;

• in a manner that is coercive and oppressive.


“Newsworthy”Private information is newsworthy if some reasonable members of the community could entertain a legitimate interest in it.

Public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes).


• Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment.

• However, a court may look at whether the private information is pertinent to an otherwise newsworthy story.


DEFAMATION• Defamation is the

issuance of a false statement about another person, which causes that person to suffer harm.

• Slander involves spoken defamatory statements.

• Libel involves defamatory statements in a printed or fixed medium, such as a newspaper, book or blog.


• Anyone who repeats someone else’s statements is just as responsible for the defamatory content as the original speaker if they knew, or had reason to know, of the defamation.

• DMCA provides strong protection


• Private individual only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement.

• A public figure must show “actual malice” – that you published with either knowledge of falsity or in reckless disregard for the truth.

– A “public figure” is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter.


Corporate Blogging• Disclosure of non-public information

through the use of blogs can expose a company to liability for violating securities regulations on selective disclosure.

• Information NOT allowed in blog postings:

– buying and selling stock– product launches– regulatory proceedings or

investigations– results of product trials

• If a disclosure does occur, the company needs to immediately evaluate the extent of the disclosure and determine if some form of follow up is required.


Professional BloggersHow should you structure your business?

Two key features to consider in structuring your business are:

1) liability protection

2) desired tax treatment.

There are several ways to form a business including: sole proprietorship, partnerships, corporations, limited liability companies, and limited liability partnerships.


Contact:

/KLFLegal


A Legal Primer for Bloggers - #BIN2010

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