Last week, I did a phone interview with my RWN co-blogger, Ron Coleman of Likelihood of Confusion and Likelihood of Success. Ron is one the premier internet lawyers out there and has represented numerous bloggers, myself included, in court and/or against legal bullying. What follows is an edited transcript of our conversation.
What’s the most common mistake you see bloggers making? What are you seeing people do that could get them sued?
Well, it’s fair to say that well over 90% of bloggers are not risking any legal trouble. Most people write their original thoughts, they make legitimate links, and even things like hotlinking graphics, even aside from the copyright issue, are probably not actionable. It’s interesting to think about whether if you knocked out someone’s website with a hotlink to a graphic, he could come after you on a trespassing theory…
But, if there is any single problem that seems to consistently be out there, it’s copyright infringement regarding the use of photographs from news services.
Well, let’s talk a little bit about that. One of the toughest areas for bloggers to make a determination about, because it’s kind of nebulous in the law, is fair use. Can you give us a quick guideline to follow? How can bloggers steer clear of trouble in the copyright arena?
Fair use is a great doctrine in copyright law, but it’s a little hard to apply on an as-you-go basis, especially in regard to photographs. The rule of thumb on all fair use is probably at what one point are you replacing the need for readers to view the original work by providing yours?
For example, the Associated Press’ view regarding text is that the headline and the lead paragraph of every story may not be quoted exactly as written in a blogger’s story or anywhere else because that is what they sell.
Now, without acknowledging that they are right or wrong about that, it’s an internally consistent position. As a general rule, you look at the percentage of work used, but what the AP is saying is in this case — almost without regard for the rest of the story that’s used — people who are scanning a site that has paid for the Associated Press feed are looking at the headline and the first paragraph. That’s the value.
Beyond that kind of special case, you generally want to look at the percentage used and whether, in order to get the full value of the original work, you still need to go to the original or not.
With photos, it’s much more complex. I think you can make a rule of thumb regarding photographs that there is usually not a fair use basis to use anything like a recent new picture from a newspaper or some other site on your blog. All things being equal and keeping in mind that there are exceptions upon exceptions, if in doubt, when it comes to pictures, you should not display it on your website.
Now many people say things online that they would never say to another person in the real world. They slander them, make threats, etc. Just to clarify, is there a meaningful legal difference between saying that sort of thing online and saying it in the “real world?”
The real world historically has been divided into two largely conceptual spheres. …There is a difference between what you say orally and what you say in writing. What the internet has done is given us a hybrid where we act as if we are speaking orally, but we make our comments in writing. So, technically speaking, the law will treat your written comments in the same way it would treat other written comments in a book, newspaper, magazine, or a letter.
On the other hand, a court considering the defamatory effect of internet statements will inevitably consider the question of how seriously do people take comments in the comments thread of a blog? In other words, the test for defamation doesn’t change, but the measure of damage would certainly be considered in the context of how authoritative and above the fold a statement is as compared to say, comment #73 in a blog that isn’t (particularly well read).
…I am frequently approached with requests to deal with internet defamation situations and overwhelmingly, my advice is…
…Let me guess — that they would be better off not (suing) because it would just draw more attention to it.
Absolutely, absolutely it draws attention on so many levels and it also gives the defamer the opportunity to put you on trial for the act that you claim never took place because the fundamental question in a defamation action is whether the statement that was made about you is true. So, even if it isn’t technically true, it may be damaging enough and as you say, meanwhile inevitably more attention is drawn to the cure than to the damage. It almost never pays.
And people online almost always side with the person being sued.
…I think that it is the case that on the internet, there is a punky attitude that disguises itself as sort of an electronic libertarianism that is unreasonably skewed towards assuming that information wants to be free or the best antidote to a false statement is a corrective statement. I’ve actually written at length on this topic. Although it’s true that defamation on the internet is best ignored, on the other hand, unlike all previous forms of publishing in the history of mankind, it is easier to create more damage, faster, and with fewer consequences on the internet than it ever has been before and American defamation law in particular is probably unreasonably slanted in favor of a very strong presumption against permitting defamation claims to succeed based on what the world looked like 20 years ago….
An issue that has come up more than a few times relates to the privateness of email. If someone reveals the contents of email he receives from you, whether solicited or not, do you have legal recourse?
I’m not aware of any case that says releasing someone’s email is actionable. So, probably not.
So, if you send an email, you should be prepared for it to go public, right?
…There’s a strong argument for not using your work email for any online playing.
Oh yeah, I’ve seen lots of disasters happen related to that.
Yeah, you don’t want to drag your employer or your employment relationship onto the internet where you have decided to be a troll or have decided to take a controversial stand on a controversial issue.
As a regular person on the internet, what sort of privacy rights do you have?
It depends on where you are located. I can tell you, for example, that in Europe, they have a fetish about privacy.
It also depends, for example, what you’re doing. For example, registering for a website has the effect of creating a little law between you and the people who took your registration information. So, you have rights against them that you wouldn’t necessarily have with strangers.
The fact is that in the United States, privacy is very, very narrowly circumscribed. …To a large extent, your problems on the internet involving privacy are not going to be solved in the court. They are just not built for that.
Ron, I really appreciate your time.