12 Important U.S. Laws Every Blogger Needs to Know
While the Internet still retains some of the “wild wild west” feel, increasingly Internet activity, and particular blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn’t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important US laws when it comes to blogging and provide some simple and straightforward tips for safely navigating them.
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Whether to Disclose Paid Posts:
Over the last five years bloggers have begun to displace traditional media outlets as individuals’ source for reliable information and recommendations. This development has created big opportunities for advertisers to get bloggers to endorse a product or service, primarily through posts or affiliate links. But as the practice and influence of bloggers has grown, US law has come to govern this area.
What is the law?
The Federal Trade Commission published a recommendation that companies who promote their product through word-of-mouth marketing must disclose these relationships. The recommendation applies explicitly to blogging, meaning that bloggers must disclose the fact that they are being paid to promote or review a product whenever that is the case.
PayPerPost and ReviewMe are websites that link advertisers up with bloggers that want to earn money for writing about their products. In light of the FTC recommendation, PayPerPost and ReviewMe bloggers are now required to disclose the fact that they are being paid for their endorsement. But beyond these two sites, there is a much larger industry of “Buzz Advertising” which takes place through informal emails and payments between bloggers. The letter of the FTC recommendation includes these informal payments as well, meaning that even under the table reviews must be disclosed. But considering that to date no blogger has been prosecuted for violating the FTC’s recommendation, it isn’t yet clear how strict the FTC is going to be or the punishments that will be imposed.
How to stay out of trouble:
- NEVER claim that you are an objective, unbiased source if you are being paid to provide information.
- ALWAYS make it easy for your readers to distinguish between advertising and editorial content.
- CONSIDER that even though the FTC’s paid review disclosure recommendation doesn’t appear to apply to links, meaning that webmasters aren’t required to “NoFollow” the paid links they give as of now, scholars at the University of Chicago Law School are currently discussing this as a future development for e-commerce law.
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Is Deep Linking Legal:
One of the biggest advantages that blogging has over traditional media is the convention to include links in an article which connect the reader directly with the source. The links could direct the reader to a file, a different page on the same site or to a new site altogether. Despite the generally helpful nature of linking and the internet’s open platform, however, linking is not free from US government regulation.
What is the law?
The biggest issues in linking right now revolve around copyright law and deep linking. Deep linking involves a blogger who places a link on his site that leads not to the front door of a site (e.g. AvivaDirectory.com), but instead to a particular page within that site (e.g. www.AvivaDirectory.com/successful-blog-launch).
Currently, there is no law that explicitly bans all deep linking to content you do not own. However, courts have declared that individual deep links are in violation of state law if they are not cited correctly. Thus, it is clear that passing off someone else’s work as your own by linking to a site in a manner in which it appears that the linked to content is a part of your site, is considered copyright infringement and it violates state laws that govern competitive business practices. But, it also appears that if you make it clear that the deep link you are providing isn’t to your own site then you are in the clear. The leading case in this area is Ticketmaster Corp. v. Tickets.com, Inc. where TicketMaster argued that a deep link by Tickets.com to a TicketMaster actual ticket purchase page was a copyright infringement because traffic was routed through the back door of the site. Thus far, however, no court has found that deep linking by a blogger is a copyright infringement or trespass.
How to stay out of trouble:
- NEVER claim that a page or site is your work unless it actually is.
- ALWAYS clearly distinguish between your work and someone else’s.
- CONSIDER that deep linking is a pretty well-established blogging practice, so if you’re deep linking to other bloggers or newspapers, you’re probably fine. But that doesn’t mean that every other blogger knows the law, so you’re likely to get an occasional angry email. If you want to play it ultrasafe, consider emailing the webmaster for permission and including a front page link next to your deep link.
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The Legal Use of Images and Thumbnails:
Images are an important way to make your posts visually more appealing and to keep the reader interested and engaged. Often, rather than creating the images they use themselves, bloggers simply use other images that they find or purchase online. Because of the obvious copyright issues with just copy and pasting someone else’s picture from their site to yours without permission (it’s a clear violation of US law), bloggers have come up with two alternative techniques for using the images of others, inline linking and thumbnails.
Inline linking is a way of linking in which the picture appears on your blog as though it were part of the page the reader is viewing, but in fact the image is pulled from another site altogether when the page is loaded. Thumbnails, are simply smaller lower quality versions of the same image which link to the source.
What is the law?
Unfortunately, the law on inline linking isn’t straightforward. With image links courts are concerned both with copyright infringement and trademark infringement, which in simple terms means they want to stop bloggers from passing off someone else’s name or trademark as their own. At this point, the only way to be safe is to get permission directly from the creator of the work or to get your images through sites like Flickr which offers creative commons images or istockphoto where you can cheaply purchase royalty-free images.
The law on thumbnails is a bit clearer. As long as you are actually creating thumbnails, which have standardized dimensions, and aren’t just reducing the size of an image slightly, a US Circuit court has held that thumbnailing is protected under the fair use exception of Copyright Law.
How to stay out of trouble:
- NEVER inline link or upload images that don’t belong to you, without the owner’s permission.
- ALWAYS purchase or use creative license pictures if possible.
- CONSIDER that even though courts have stated that thumbnails CAN fall under the fair use exception, it doesn’t mean that all thumbnails are necessarily legal. There are four factors that court’s use to decide if something qualifies for fair use, and given that only a few courts have considered the issue, don’t be surprised if some thumbnails that don’t meet the four factors are deemed illegal.
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Laws that Protect You From Stolen Content:
There’s nothing more infuriating than seeing the article you worked on for hours and hours appear in full on another site without any credit given. Even worse, is when their version of the article shows up higher in search engine rankings than yours. Thankfully, copyright law protects original expression, providing you with a legal recourse if your content is stolen.
What is the law?
Your work is protected under copyright as soon as it’s created. No record or registration with the U.S. Copyright office is required for this protection. However, you can register your work with the U.S. Copyright Office to create a public record of your claim. If you believe that your work has been stolen, you can file a copyright infringement lawsuit against the offending party. These cases are treated as strict liability tort, meaning you only need to prove that the copying occurred, the intent of the offense is irrelevant. Most successful lawsuits result in monetary awards along with injunctions against future infringing uses.
Usually the important question isn’t whether you can win your case, its whether its worth enforcing your judgment. By and large it is impractical to enforce a judgment on someone in a third-world country simply because the cost of pursuing the claim is a lot more expensive than anything you’ll ever get out of it, that is, even if you can get jurisdiction over the person.
How to stay out of trouble:
- NEVER simply blow off the fact that someone has stolen your work. You may not always be able to enforce your claim, but its always at least worth a quick cease and desist letter.
- ALWAYS remind would-be thieves that your work is copyrighted by making note of it on your webpage.
- CONSIDER the costs and potential benefits before pursuing a copyright infringement claim. If you can’t collect, it’s a good idea to get over your ego and try non-legal remedies such as letters, reporting the offender to search engines, or just asking for a link in return.
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Domain Name Trademark Issues:
If you’re just starting out as a blogger, chances are you don’t have a trademark yet. However, large corporations do. If you’ve registered a domain name that a trademarked entity can lay claim to, you may have to give it up.
What is the law?
In November 1999, Congress passed the Anticybersquatting Consumer Protection Act, which makes it easier for individuals and companies to take over domain names that are confusingly similar to their names or trademarks. However, bringing a trademark infringement case before the court can be a long, drawn-out, expensive process. The Internet Corporation for Assigned Names and Numbers (ICANN) decided to streamline the process by creating the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, only three things need to be proven:
- The trademark owner owns the trademark,
- The party that registered the domain name has no legitimate right or interest in the name, and
- The domain name was registered and used in bad faith.
The UDRP has made domain name disputes faster, cheaper and universal. It also tends to favor trademark holders.
A leading case in the area of trademark disputes is Continental Airlines, Inc. v. continentalairlines.com. In that case, the dotcom was simply re-routing visitors to a travel site where they could purchase Continental Airline tickets plus pay an extra $15 fee to use the service. The court awarded the domain to the Airline on the basis of trademark infringement.
While easy cases like Continental are relatively clear, a number of bloggers have had their domains taken from them in less clear situations. For example, the terms “no legitimate interest” or “bad faith” can be confusing and lead to honest bloggers losing domains.
How to stay out of trouble:
- NEVER register a domain in the name of an existing trademark. The days of profitable cyber squatting are long gone, and attempting to do so today will only cost you time and money.
- ALWAYS check online to verify that there aren’t any public trademarks already registered for your domain.
- CONSIDER that a free search will only reveal the registered trademarks (and not even a complete listing at that). A name need not be registered in order to receive treatment as a trademark by courts. One of the best ways to do a free check for these “common law marks” is to simply do a search engine search for the name of the domain you want to use as well as some common variations.
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Handling Private Data About Your Readers:
If you’re building a readership for your blog, you may want to start an email subscription list, enable comments or create a bulletin board. The use of these features may require your readers to disclose personal information to you, and depending on the nature of that information you can open yourself to legal issues.
What is the law?
Unfortunately there is no single law governing the privacy of information disclosed to webmasters in the US. Instead, bloggers must comply with what seems like a maze of legal jargon contained in acts such as HIPAA, P3P, the U.S. Code of Fair Information Practices, and the California Online Privacy Protection Act.
Given the dizzying array of laws which govern private information, it might come as a surprise that following just a few guidelines can keep you legally protected. The easiest way to protect yourself from liability concerning the privacy of users is to post a privacy policy in a place that is easily visible on your site. In the policy, explain exactly how you use personal information and with whom you intend to share it. Disclose how or if you use cookies or any other kind of tracking software.
In addition to a privacy policy, you will need to provide a clear process for opting out or modifying disclosed information. This can be as simple as providing an email address for the person to opt-out. Further, there are additional legal landmines concerning the collection of data for minors as well as medical and criminal data. Unless it is absolutely necessary (in which case you should consult a lawyer to plan your data collection strategy) just avoid this type of information altogether.
How to stay out of trouble:
- NEVER share or sell sensitive information such as social security numbers, credit card numbers, bank account information, criminal background or health records.
- ALWAYS post a clear privacy policy stating your intentions for collecting private information along with an opt-out plan.
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CONSIDER that attempting to collect or sell information about your readership that you haven’t made clear in the privacy policy is not only likely to cause you legal problems, it is a sure way to lose the trust and reputation you have built up through your blogging.
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Who Owns User-Developed Content and Can You Delete It:
For those of you who have opened your sites up to user-driven content, be it comments, reviews, or a bulletin board, the question of who legally owns the content is an important one for deciding what you can and cannot do with it. Thankfully, the answer is pretty straightforward, and so are the solutions for dealing with it.
What is the law?
It may come as a surprise to many bloggers, but you do not actually own the user-driven content on your site. Instead, it is actually the copyrighted property of the author. The analysis is pretty straightforward; copyright law only requires that an author create an original work and write it out in order to grant that person a copyright. The fact that you do not own the user-driven content on your site can create a number of headaches for bloggers, such as an obligation to remove a comment whenever the author requests.
But by including a terms of service which spells out that you will have a license in all content posted in the site and more specifically that you will not have a duty to modify or withdraw posts but you may do so if you choose, you can ensure that you have effective control over the user-driven content on your site even if you do not have actual ownership of the content.
How to stay out of trouble:
- NEVER treat comments as though you own them by manipulating them or deleting them without having included a terms of service which gives you permission to do so.
- ALWAYS include an extensive terms of service that explains all of your rights with respect to user-driven content.
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CONSIDER that if you are allowing anonymous posts you will have no way of verifying the true owner of a comment when someone emails you asking for you to take a comment down. Consequently, you should make sure to at least collect basic identifying information before allowing someone to comment or post on your site.
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The Duty to Monitor Your Blog Comments, and Liability:
For those of you who have opened your sites up to user-driven content, be it comments, reviews, or a bulletin board, you may have had to deal with finding slanderous, libelous, copyright infringing, or just plain hateful speech content on your site. Even though you as the webmaster didn’t have anything to do with the content, people inevitably look to you to fix the problem or even to blame when someone gets hurt. This raises two important questions for you the webmaster; are you required (or allowed) to turn the offender’s name over to authorities, and what is your duty to monitor the user-generated content?
What is the law?
Section 230 of the Communications Decency Act governs a blogger’s liability for user-generated content. Thankfully, Section 230 carves out broad protection for bloggers with only two exceptions. The law was designed to encourage free speech by allowing ISP’s, bloggers, and message board webmasters to focus on building participation rather than on the potential liability of getting sued for some user’s crimes. But while it protects bloggers from things like having to monitor for defamation, slander or hurtful talk, the law does not provide protection for federal crimes or intellectual property violations, meaning that you can potentially be found contributorily liable if this type of behavior takes place on your site.
When it comes to the question of whether you must (or can) turn over the poster’s contact information to the authorities if a suit is brought, the answer is even less clear. A leading case on the issue is Doe v. Cahill, in which the court required the service provider to identify the anonymous poster. But other courts have gone the other direction, and congress is currently revisiting the issue. At this point, the safest path is probably to explicitly state in the terms of use that you will turn over the information to any and all requesting authorities so that you will be covered if the issue ever comes up. It isn’t a perfect solution, but until the law clears up, it is a lot better than getting sued.
How to stay out of trouble:
- NEVER allow criminal comments or stolen content to remain on one of your sites. Users may complain that you’re stifling their free speech, but when it all boils down you simply cannot afford to be sued.
- ALWAYS include in your terms of use that you will disclose all user personal information to requesting authorities.
- CONSIDER that moderating your message boards for federal criminal behavior and intellectual property infringements is not just an important way to keep on the right side of the law, it also sets the tone for the type of content that is permissible on your site and will help foster a friendly and collegial environment.
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Basic Tax Law Issues in Blogging:
If your plan is to make money while doing what you love, you may be receiving revenue from ad sales, donations and items for sale on your site. While it is great that you’re developing revenue through your blogging, unfortunately Uncle Sam is going to want his cut. But because blogging for dollars and e-commerce are relatively new developments in the world of tax, the laws governing your e-business or blog can be rather confusing.
What is the law?
If a business selling goods over the Internet has a physical presence in a state or local area, then they are required to collect sales tax from customers in that area. Some businesses are finding a way around this by claiming that their e-commerce is a separate, unrelated entity from the physical store. However, states are beginning to clarify their laws to combat this practice. Thankfully, if you are just selling goods over the Internet and you do not have a physical, brick-and-mortar business, the Supreme Court has clarified in Quill v. North Dakota that you are largely exempt from collecting a sales tax.
Even if you are exempt from state sales taxes, you will almost certainly have to pay federal income taxes on any income your sites bring in. But just because you have to pay income tax, however, doesn’t mean that you can’t be smart (and still legal) in the way you pay it. The best way to reduce your taxable income is to make sure that you are taking all of the relevant tax deductions. For example, if you do your blogging at home, you may qualify to use portions of your internet costs, utility bills, rent, mortgage interest and insurance as deductions through business use of your home exemption. Though you may want to play things even more conservatively by just taking other legitimate deductions such as the computer and research costs you undergo.
In addition to taking all of your deductions, you should also focus on the structure and strategy of your e-business. One of the best ways to minimize your long-term taxes as a blogger is to make sure you hold a site for longer than a year before you sell it, so that it will be taxed at the lower long term capital gains rate of 15% rather than as ordinary income. Another is to make sure that you are investing up to the legal annual limit in a tax free retirement account.
How to stay out of trouble:
- NEVER throw away business receipts, if you get audited they are the only defense to the IRS.
- ALWAYS take advantage of your available deductions and factor in tax consequences into business decisions.
- CONSIDER that the difference between something being taxed at the long term capital gains rate (15%) and the short term capital gains rate (35%) is so drastic that it occasionally may be worth passing up on a sale in order to make sure that you have held a domain longer that one-year so as to qualify for the lower tax rate.
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Limited Liability Laws and Incorporating:
When you started blogging you probably imagined it as a pure hobby rather than a business involving serious legal issues. That’s why the vast majority of bloggers are currently operating their business as a DBA which is the default and which offers no legal protection. Bloggers are often confused as to whether they need to form a legal entity for their business, what kind they should form, and how much protection it offers. Thankfully, the answers to these questions are relatively straightforward.
What is the law?
Forming a legal entity, whether it be a Corporation, an LLC or an LLP, all provide limited liability. Limited liability means that when something goes wrong and someone sues the company, they can only get to the assets that are in the company and not to your personal assets such as your personal bank account. The protection offered by a limited liability entity isn’t perfect, but if you keep your personal and business finances separate, make it clear when you are acting as a representative of the company, and otherwise act like a company, the courts will generally treat you like one as well.
Most Fortune 500 companies today are Corporations, which leads many bloggers to believe that there is something desirable about forming that model for themselves. The truth, however, is that for almost every single blogger forming an Limited Liability Company (LLC) is the way to go. An LLC carries all the same legal protections as a Corporation (in fact courts apply the exact same statutes to both), while letting you avoid all of the administrative hassles and giving you a better tax arrangement.
Forming an LLC is a quick and relatively cheap process:
- Choose a name for your business that complies with your state’s LLC rules.
- File articles of organization with your state’s LLC filing office.
- Create an operating agreement to set up the rules for ownership and operation among your members.
- Obtain any licenses and permits that may be required for your business (not applicable for most bloggers).
- Additionally, some states may require that you publish a notice of your intent to form an LLC.
How to stay out of trouble:
- NEVER mix your personal funds and company funds if you want to preserve your limited liability protection.
- ALWAYS form an LLC rather than a Corporation (Inc.) unless there are very specific reasons which apply to your unique case.
- CONSIDER the state you form your LLC in determines the law and to some degree the state taxes that apply to your company. The vast majority of LLC’s are formed in Delaware or Nevada because of the strong legal entity caselaw in those states which tends to favor companies over individuals in lawsuits, but at a minimum creates a set of clear laws for companies to use if something goes wrong.
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Spam Laws and Which Unsolicited Emails are Legal:
We all hate the Viagra and Yahoo! Lottery emails that fill up our junk folder everyday. But what about your site’s newsletter, that couldn’t be considered spam could it? Unfortunately it might if you don’t comply with all of the requirements on mass email that US law requires.
What is the law?
The CAN-SPAM Act of 2003 requires the labeling of unsolicited, commercial e-mail as well as opt-out instructions for recipients, including the sender’s physical address. False or misleading header information and deceptive subject lines are also prohibited. Each violation of these provisions is subject to fines of up to $11,000.
If you are planning to send out a mass email, you should be clear about who you are and your purpose for emailing the recipient. Make sure that all of your routing information is accurate and don’t get too creative with the subject line. Include a valid physical postal address. Finally, provide detailed instructions on how a recipient can refuse future emails from you. You can give them a menu of choices for opting out of certain types of emails, but ultimately whatever you offer must be clear and you must offer a way for the recipient to stop receiving all commercial emails from your address.
How to stay out of trouble:
- NEVER use false or misleading information in the header or subject line.
- ALWAYS identify the email as commercial, identify yourself, state your purpose and include information on how the recipient can opt out of future unsolicited emails.
- CONSIDER that courts aren’t clear on what qualifies as ‘mass email.’ While almost every spamming suit brought has been against the prototypical person sending 10,000 Viagra emails a day, in theory, the person sending 150 unsolicited emails with a misleading title is also in violation.
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Are Bloggers Protected from Journalism Shield Laws:
Whether the local newspaper reporter is ready to admit it or not, bloggers have begun to supplant traditional print reporters as leading journalists. Unfortunately, the laws that have protected print journalists from revealing confidential sources do not always map easily onto the role that bloggers play in media. Thus the question of whether a blogger will be legally permitted to keep his source’s information confidential if subpoenaed isn’t an easy one to answer.
What is the law?
Bloggers acting as reporters can be excluded from shield laws that have traditionally protected print media reporters. Currently, 31 states and the District of Columbia have recognized shield laws through state law, while judicial decisions have provided reporters protection in another 18 states. As the laws have been interpreted, however, they only apply to journalists in the traditional formal sense. That doesn’t mean that they exclude bloggers altogether, only that for a blogger to qualify for protection he must meet the standards laid out by the courts for “traditional journalism.”
The basic question if you wish to receive shield law protection, is whether you fall within your specific state’s definition of those covered. And unfortunately every state is different. While some specifically limit the privilege to print media, those that are open to including bloggers often look for the exercise of editorial control. Editorial control includes qualification of your sources, fact checking and considerations of credibility. Basically, you need to treat your blog as though it is actually putting forth fact as opposed to your opinion, and then take regular steps to ensure that the facts you present are accurate.
How to stay out of trouble:
- NEVER assume that you are protected by shield laws.
- ALWAYS exercise editorial control and investigate your state’s shield laws to see the specific criteria for qualifying for protection.
- CONSIDER that there are currently efforts underway by respected organizations who are arguing for the extension of shield laws to cover both formal and informal blogger journalists. But while bloggers in the future may be afforded this protection, today you need to do the research to know where you stand.
OTHER RESOURCES
- Create your own legal forms for free.
- Brush up on your legalese at eLibrary.
OTHER REFERENCES
- Bitlaw – Linking and Liability
- ECommerce Times – Federal “Shield” Law May Not Protect Bloggers
- Internet Law Library
- National Association of Professional Insurance Agents – FTC Says National Do-Not-Email Registry Not Yet Feasible
- Ius mentis – Give Me That Domain Name!
- Internet Attorney – Internet Privacy Law
- FindLaw – Why You Can’t Sue Google, Tax on Internet Sales
- Internet News Unlimited – Internet Home Business Entrepreneurs are Saving Thousands in Income Taxes
- The Hometown Advantage – Internet Sales Tax Fairness
- Domain Name Journal – Tips on Proper Reporting of Your Domain Name Sales on U.S. Personal Tax Returns
- Media Resource Law Center – Legal Actions and Developments Involving Blogs
Disclaimer: Legal Information is Not Legal Advice
This article has provided information about the law designed to help readers better understand the legal issues surrounding blogging. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we have conducted research to better ensure that our information is accurate and useful, we insist that you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is accurate. To clarify further, you may not rely upon this information as legal advice, nor as a recommendation or endorsement of any particular legal understanding, and you should instead regard this article as intended for entertainment purposes only.
May 2nd, 2007 at 3:32 am
Important information every blogger (and website owner) should know. Clear language not legal speak - especially helpful for non native English speakers like me.
Thanks for providing.
May 2nd, 2007 at 5:48 am
Hi,
WOW!, so much great information.
It’s almost enough to give anyone a headache!(kidding)
Following your simple guide, its easy for any Blogmaster to stay on the right side of the law.
I will certainly be making a few changes (and additions) to my newly created sites.
Keep up the good work!
Robjean.
http://www.RobJean.co.uk
May 2nd, 2007 at 9:35 am
This is one of the most useful, in-depth articles that I have seen in a long time.
Liability should be a major concern for many people and bloggers. I am guilty of not being entirely informed about all of the legalities of blogging as well.
Thanks for spelling many important issues out for us!
May 2nd, 2007 at 10:07 am
I’m not from the US but this is very helpful and useful. Certain areas apply internationally, and some already exist in our country.
Great read and highly recommendable.
May 2nd, 2007 at 12:57 pm
Very nicely done indeed. I love how it has all the technical ‘legal speak’, but is then broken down so that the average blogger actually knows what’s going on. I’ve passed this on to others, too. Thanks!
May 2nd, 2007 at 6:13 pm
Wow..I would have never even thought that some of those would be laws. This is definitely something people need to know. Nice work.
May 2nd, 2007 at 8:26 pm
Fantastic article! Very, very helpful. I use clipmarks a lot as a clipping service within my site. Generally it has clear markings that the content is not mine and provides a direct backlink to the cited article…nor does any clipmark contain the full content of the original article. Normally I provide my own original commentary on top of the clipmark which is unique from the original author.
Your commentary on image use is very helpful too.
best regards
Eric
May 2nd, 2007 at 9:02 pm
Great work! Just one minor change that needs to be made:
You advise readers to make sure to invest up to the legal annual limit in a “tax free” retirement account. Unfortunately, there is no such thing. Retirement accounts are tax DEFERRED, not tax FREE. There is a big difference. One postpones the tax - the other eliminates it altogether.
May 2nd, 2007 at 11:35 pm
Great advice.
As for Bob’s point of “tax-free” retirement accounts … the contributor should review the tax consequences and advantages of the two common individual IRAs. The Roth IRA can grow and be withdrawn ‘tax-free’ since no deduction was taken at the time of contribution. (contribution taxed as earned income) The Standard IRA offers a deduction at the time of contribution, but any grow is taxed at your rate when withdrawn. Realistically, any growth coming from a Roth IRA can be considered ‘tax-free.’
May 2nd, 2007 at 11:39 pm
There is a lot of useful content and knowing the law can make your life a lot easier my website http://www.iannellamummolo.com is starting it’s own blog, For Auto Accident, and Slip and Fall Injuries. I find it more and more of an ongoing threat that restriction on blogging will come to pass! Keep up the good work-
May 3rd, 2007 at 12:19 am
I’m with Marc (#3, above). Very well-written article and extremely useful.
May 3rd, 2007 at 1:12 am
I have a lot of poetry submitted by users on my web site. It’s good to understand blogger laws better from reading your post. Come share your poetry.
May 3rd, 2007 at 1:36 am
Excellent overview. Thanks for taking the time to put this together.
May 3rd, 2007 at 1:43 am
Thanks for the info, very detailed and very useful!!
May 3rd, 2007 at 1:53 am
There has been a recent uproar in the blogosphere over RSS content and copyright issues inherent in public feed aggregators. What say you on the matter?
May 3rd, 2007 at 2:52 am
This is some great info. A lot of these rules and laws apply on normal websites as well. The biggest mistake Bloggers and website newbies make is that they do not know the law. Most of us learn what are right and what is not as we make our way through cyberspace. I guess it is part of being human…
May 3rd, 2007 at 3:28 am
This one is a great post and the author put a lot of work on this. It is good to read on these things very carefully not only for bloggers but those who have other types of websites.
I am making this as the “Post of the Day” for my “Post Awards” blog.
http://postawards.blogspot.com/
May 3rd, 2007 at 4:12 am
This was a well written informative article. Good job!
May 3rd, 2007 at 7:34 am
I write for a blog called Fix Your Thinking. I recently had a case resolved in Federal Circuit Court that provided a functional analysis for determing whether a blogger was a journalist. In the case, my magistrate judge had ruled (against an injunction for an article on my blog) that I was protected under the Lanham Act (which you should link to) because I was termed as news and news commentary and therefore protected in using a copyright and trademark in my critique of a local eBay dropoff business. (Google for Bidzirk vs Smith)
May 3rd, 2007 at 8:15 am
CAN-SPAM might not specify a minimum amount of volume, but some states have spam related laws that do. Virginia, for example, requires at least 10,000 messages on three different days. Virginia courts have convicted people in other states for sending to ISPs located in Virginia, such as AOL.
May 3rd, 2007 at 8:57 am
And what if someone steals an article (content) from your blog and posts it in a blog hosted in a country other then the states? Though ahh?
May 3rd, 2007 at 9:14 am
In response to point number 2 if that is true, then About.com should be liable for every link on their site. They like to make it appear as if it’s all a part of about.com by putting it in a frame.
May 3rd, 2007 at 9:39 am
This is a great information.
it is important to all webmasters
May 3rd, 2007 at 7:06 pm
You didn’t mention DMCA takedown notices as an effective way to deal with stolen material — much cheaper and quicker than a lawsuit.
May 3rd, 2007 at 7:58 pm
Tried contacting you via your site..cannot type anything so am using this method: I would like to post the above, sans comments, to my blog in one to five possible posts..is that O.K. Can I get your groups’ o.k. Thanks
May 3rd, 2007 at 8:56 pm
This is a great article! I think it needs just one more tip: Know where your server is. Pick a jurisdiction which fits your needs, and keep in mind that you can always opt for a host in another country - there are a few countries out there that don’t practice censorship to as great an extent as the US.
May 3rd, 2007 at 9:05 pm
Thanks for making us all aware of this useful knowledge in a well organized manner.
May 3rd, 2007 at 9:10 pm
Wow. This has given me a lot to think about. Great post!
May 3rd, 2007 at 9:29 pm
That section on images and thumbnails fascinates me. I intend to incorporate (ad verbatim) some parts of what you wrote onto my copyright section of my website - with full credit to you and your blog URL. These 12 ‘tips’ are great write-ups!
May 3rd, 2007 at 10:17 pm
Thanks for this great summary. Just one more addition: if you live outside the US, most advice is still true. As long as you use common sense and act in good faith, you’re pretty safe, though never completely so. Beware of small variations in other laws that could bite you when you expect it the least: for example, in german law, the operator of a blog may be required to publicly display his or her legal name and street address (google for Impressumpflicht) as soon as they get commercial, even if it’s only making revenue out of displaying google ads, or under some circumstances, by linking to commercial sites. Blogging will remain a legal minefield; you’ll inevitably trip on one of them every now and then, and get your fair share of cease and desist letters too. But unless you’re breaking the law on purpose, there’s not much to worry about. Maybe it’s a necessary rite of passage nowadays.
May 3rd, 2007 at 10:35 pm
I have one question that wasn’t clearly identified. This surrounds a post or article of a blog that states that a certain individual or business was caught doing something wrong, and even though it could be construed as a ‘he said - she said’ scenario, could the blogger be held liable for mentioning this on their blog? TIA
May 4th, 2007 at 12:38 am
Thanks for the information.
May 4th, 2007 at 2:06 am
Thanks for providing some useful information.
May 4th, 2007 at 3:19 am
A great Article to Archive. Thanks
Apart from US law., One has to Know the Laws prevailing in the respective Country. Like here in India, we have two governing body which enforces sevral cyber laws according to India.
May 4th, 2007 at 3:47 am
This is indeed very useful information. Many thanks.
May 4th, 2007 at 4:17 am
A very interesting read. Real food for thought. I’m especially sensitive to clearly mention sources and not to claim ownership of the work of others as one’s own. A clear mention is easy and courteous and it separates the grown-ups from the children.
Excellent piece!
This comment is subject to the creative commons license and may be freely redistributed if properly sourced. How about that?
[I’m kidding. I keed. Don’t spend time typing about how unimportant my opinion is. I’m a firm believer in Harry Callahan’s philosphy].
May 4th, 2007 at 4:36 am
I’ve had fun reading your post, I live in belgium, so I don’t know what the law here states, but I can see a lot of those laws being international.
Good to know, so I can incorporate a good terms of use in my future sites.
Thanks a lot for the info (this one is going in the bookmarks :))
May 4th, 2007 at 4:36 am
Your readers may also be interested in EFF’s Legal Guide for Bloggers (http://www.eff.org/bloggers/lg/), which also discusses many of the legal issues that bloggers face.
Thanks for referencing our organization and the Apple v. Does case in your discussion of “Are Bloggers Protected from Journalism Shield Laws”. You’ll be happy to hear that the case was successful, and the California Court of Appeals ruled that the online journalists did not need to disclose their sources, pursuant to both the First Amendment and the California reporters’ shield.
The law on “whether you must (or can) turn over the poster’s contact information to the authorities if a suit is brought” is clearer than you might think. First, it is important to note that Doe v. Cahill actually held that the anonymous poster’s information was protected, and did not require the blog to turn it over. Second, if law enforcement is seeking information about a poster, the Electronic Communications Privacy Act requires that law enforcement use specific forms of process, and can limit voluntary disclosure. See 18 USC 2701 et seq. Since people have a constitutional right to post anonymously (as stated in Doe v. Cahill and many other cases), many bloggers adopt a ‘best practice’ of notifying the poster whose information is sought, and giving them the opportunity to move to quash the subpoena.
While, as you correctly note, Section 230 does not protect against intellectual property claims, you may also want to expand your discussion about liability for user content to include the safe harbors in the Digital Millennium Copyright Act, which can protect against claims of copyright infringement based on material posted by users if certain steps are taken. See 17 USC 512.
In addition to your discussion of the Ticketmaster case on linking, you may also want to look at Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12
(N.D. Cal. 2004) (”Hyperlinking per se does not constitute direct copyright infringement because there is no copying.”); and Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) (”use of frames and in-line links does not constitute a ‘display’ of the full-size images stored on and served by infringing third-party websites.”)
Kurt Opsahl
Senior Staff Attorney, Electronic Frontier Foundation
May 4th, 2007 at 6:01 am
Very good list, I will have to go back through it to get a bit more of the information into the old greymatter.
But, the Deep Linking one gets me a bit confused. How could linking somewhere within the site be breaching copyright? What do they expect a blogger/news site to do? Link to the frontpage, and say, “This opinion is from an article I read, go to this site, and search for blahblahblah”…doesn’t really work. The internet is just a group of links, to take that right away will break down the internet.
May 4th, 2007 at 8:09 am
A little amendment regarding unsolicited bulk email:
NEVER send unsolicited email. Regardless of the law in your jurisdiction, it’s against the terms of service of your ISP.
Mail systems administrators define “spam” as “unsolicited bulk email”, regardless of whether the message is commercial or whether it has falsified headers — “it’s about conSent, not conTent.”
What happens if you spam? Your Internet service can get terminated. If you run your own mail server, you could find its IP address blacklisted, meaning that you can’t send email to most ISPs. And, of course, you’ll be voluntarily lumping yourself in with V14GGRA pushers.
May 4th, 2007 at 8:15 am
Great Job in giving us all the legal perspective. I think that saved me about $1,000 in time spent with my attorney going over blogging liability
Who remembers back when the web was so new we didn’t have laws related to what we did? I remember speaking with an attorney once who just flat out said “this is all new… we’ve never had to do this before.”
May 4th, 2007 at 8:41 am
What about use in the rest of the world, because I live in Canada would ANY of these laws apply?
May 4th, 2007 at 8:50 am
Very nice, and thank you for this one. This answers some of the questions that I have, and thankfully I have done some of these things already. Now if I could just get a good definition of fair use I would be good to go.
May 4th, 2007 at 9:33 am
Do these laws apply to UK hosted blogs? What is the law in the UK as it doesn’t appear to be as clear-cut as the US?
May 4th, 2007 at 11:35 am
Excellent, comprehensive info that ever blogger should read! I agree that these 12 tips are also useful to webmasters and site owners. Great information and details on blogging and the law that I’ve shared at my own blog: http://ravenyoung.spaces.live.com/blog/cns!17376F4C11A91E0E!3500.entry.
Thanks for posting this great article and sharing!
May 4th, 2007 at 11:44 am
Good article. My only concern is that you didn’t cite the source pasted in Item 10 as being from Nolo Press.
I think it’s only fair that you attribute, at least briefly, where you get your content from. A link doesn’t imply citation, IMHO–just another place to read more info on a topic.
May 4th, 2007 at 12:18 pm
I appreciate the efforts to put a lot of information “out there” in a short space.
I’m a tax attorney and stuff like this always give me pause. I’m also a blogger - both individually and for networks - so I understand that not everyone wants to throw money at an attorney to solve all of your problems.
All of that said, just be careful of phrases like “The truth, however, is that for almost every single blogger forming an Limited Liability Company (LLC) is the way to go. An LLC carries all the same legal protections as a Corporation (in fact courts apply the exact same statutes to both), while letting you avoid all of the administrative hassles and giving you a better tax arrangement.” You don’t necessarily avoid all of the hassles and in certain states (like PA, where I live), if you don’t pay attention, you can create a tax headache by subject yourself to additional taxes like the CS/FF. You can also set yourself up for additional local taxes.
Don’t get me wrong - I’m all for incorporating when it makes sense. But you have to think about all of these things more broadly and not relying on one or two quick points.
And I’ll stop commenting now before people start hissing.
May 4th, 2007 at 12:53 pm
I agree with Anthony, this is an incredibly useful post. At $1000 a piece, you’ve saved your readers millions!
Kelly, no hissing. You make a good point. In Missouri, you can file as an S-Corp even though you are an LLC. I didn’t know this until I hired an accountant to do my taxes. Saves me thousands each year.
May 4th, 2007 at 1:47 pm
This blog post is utterly useless. You don’t have to know any U.S. Laws if you live in a civilized country.