when lawyers = bloggers = lawyers

Lawyers have taken to blogging with gusto. Who among us can resist the urge to share their wisdom with the whole world, a paragraph at a time? Certainly not your humble narrator. But you ask,’what about the cyber-liability?’ No problem. Keep these 12 simple rules in mind and you’ll go far. Oh, and you’re welcome.

Posting for Dollars

As blogs have displaced traditional media as a way of getting information into people’s hands fast, fast, fast, ads have morphed from the eyesores they once were into paid, market moving, posts from influential bloggers. Welcome to word of mouth marketing. Remember the payola scandals of the 50’s? Well it’s time to rock around the clock again! Only this time the FTC recommends advertisers disclose their relationship with the promoting blog — and maybe they will, but remember that getting paid to endorse things is as American as hot dogs, baseball, apple pie, and invading the middle east. Just look at PayPerPost and ReviewMe — websites doing business out in the open connecting would be shills with corporate sponsors.

And hard on the heels of the word of mouth campaign comes so-called buzz advertising; which is not really advertising so much as a system of peer recommendations by e-mail (e.g. normal human behavior) that has been cooped and sold by marketing folk. Since the FTC has yet to weigh in on buzz marketing we don’t really know what its position will be; but we can be confident that by the time it takes a stand the landscape will have shifted under the commission’s feet, ensuring that it stays on the cutting edge of cultural irrelevance.

Finally, it turns out that scholars at University of Chicago Law School are looking into the use of hyperlinks in blogs and websites as part of a growing, but loosely affiliated, body of rules known as e-commerce law.

Going Deep

One of the great features of blogging is that it allows authors to co-opt or refer to an entirely new line of discussion by using links to outside sources. In fact, linking is so easy and intuitive that it seems you could write an entire article consisting of references to other articles (“sampling” in modern musical terms). Therein lies the problem. When is linking equivalent to infringement of the (original) author’s copyright? The answer may lie in the depth of the link. Content found within a website (i.e. not on the main page) is presumably meant only for visitors to that site — not tourists from nearby sites or blogs. Now while no law bans the practice of deep linking to content you don’t own, it goes without saying that passing off someone else’s work as yours is a copyright no-no. What’s an enterprising blogger to do? Disclose, disclose, disclose, and see the discussion in Ticketmaster Corp. v. Tickets.com, Inc. One way to stay out of trouble would to limit your link references to pieces within the journalism and blogging communities themselves, where such practices are tolerated, and even appreciated.

A Picture is Worth a Thousand Complaints

Words are more powerful accompanied by images. Where time or resources are tight, bloggers borrow from one another, from the Web, or from resources such as Flickr or istockphoto, to enhance their posts. How often does that happen? So often that bloggers have developed techniques to deal with the phenomenon such as inline linking (which leads the reader to a source page) and thumbnails (small representations of a picture or photo). With inline links, bloggers use a share and share alike copyright policy known as the creative commons, in which one can can cheaply purchase royalty-free images. As for thumbnails, as long as you use a genuine one rather than simply a reduced-size image, a US Circuit court has held that thumbnailing is “fair use.”

Steal This Content!

Copyright disputes stand squarely at the heart of the intersection between the Internet and time-tested legal conventions. Very simply, work is protected under copyright as soon as it is created – no record or registration is needed – but you can still choose to register your creation with the U.S. Copyright Office in order to create a public record that can be used in the event of copyright infringement. Copyright violations are torts, and strict liability torts at that. Most suits do result in monetary awards and injunctions against future infringement, but almost all start with a simple cease and desist letter.


Most bloggers don’t have a trademark to protect, but large corporations do. If your domain is similar enough to an existing trademark to cause confusion in the market (whatever that is) then you can expect to be challenged. The issue here is cybersquatting. In November 1999 the U.S. Congress passed the Anticybersquatting Consumer Protection Act to address the issue, but the Internet Corporation for Assigned Names and Numbers (ICANN) uses the flexible Uniform Domain Name Dispute Resolution Policy (UDRP) for faster results. On this point, see Continental Airlines, Inc. v. continentalairlines.com.

Reader Data: Keep Private Things Private

When you solicit user data as part of the requirement for visitors to use your blog or website, you are doing 2 things: building a database of customers for future reference, and loading up on potential liability. What you know can hurt you, even if you don’t use it. Good examples include the forest of regulations in HIPAA, P3P, U.S. Code of Fair Information Practices, and California Online Privacy Protection Act. The simplest solution is probably to just post a privacy policy so users know what to expect and a clear process for opting out of or modifying personal information. This can be as simple as providing an email address for the person to opt-out.

Who Owns User-Developed Content?

Whether comments, reviews, a bulletin board, or some other way for people to sound off, you may have user-developed content on your site or blog and may not even know it. Now all you need to do is figure out who owns that that stuff and what can be done with it. While it may come as something of a surprise, it turns out user-developed content is owned by the users who developed it, and under tenets of basic copyright law must be cleared before further use. Maybe the easiest thing to do in these cases is to use a EULA (Internet-speak for an end-user license agreement a/k/a shrink wrap agreement). This would be the delightful jumble of words that you’be been skipping over ever since you ripped open your first coyp of DOS. Oh, joy!

Who Suffers from User-Developed Content?

Surprise! While you can’t use content from others you can sure be liable for it. Just ask the satisfied customers in Congress who authored Section 230 of the Communications Decency Act on blogger liability for user-generated content. Of course there is broad protection for freedom-of-speech types, but the law was not designed to protect ISP’s, bloggers, or message board webmasters from liability for user defamation, slander, “hurtful talk” (hurtful talk — you’ve got to be @$%! kdding me!), federal crimes or intellectual property violations. Got it? No fun of any kind. See Doe v. Cahill for a well-reasoned opinion.

Let’s Blog about Taxes!

This section of our discussion deals with making money … so it does not apply to the vast majority of bloggers out there. Nonetheless, for the elite minority who have managed to make a buck or two, remember: your Uncle Sam wants his cut. Luckily if you are just selling goods over the Internet you are still in the clear under the Supreme Court’s Quill v. North Dakota decision stating that you are largely exempt from collecting a sales tax. But remember – tax law can be a 2 edged sword. Remember to ask about tax deductions for business user of your home, supplied, and more. Check out these deductions on business use of your home for example.


You knew we would end up here. I swear I don’t need all that Viagra spammers keep trying to sell me, what with all the LOTTERY! YOU’VE WON announcements I’ve been getting lately. You get the idea — don’t make your blog’s newsletter a victim of the CAN-SPAM Act of 2003. But then why would you when that’s the poitn of RSS: everything you want in an electronic message and nothing you don’t.

See you online, folks.

Source: Aviva Directory

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