The Biggest Legal Mistake Made By Bloggers

Blogging has revolutionized the world. Whether it is news, advice or information, one can always find an expert blogger providing quality content online. This does not mean bloggers do not face legal issues. They do. With this in mind, let’s look at the biggest mistake bloggers make online.

blogging mistakeThe Problem

The problem most bloggers are running into is copyright infringement. Unfortunately, most do not realize as much. The issue at hand is not what you are blogging about for the purpose of this article. Instead, the issue is what visitors to your site are uploading.

Your first thought in this regard is undoubtedly that your visitors don’t upload anything to your site. Well, do you allow visitors to comment on your posts? Those comments are uploaded content. What if a person uploads an image or copies an article from another site while arguing a point? All of this could give rise to a potential copyright infringement action.

Do you allow visitors to link to other sites when they comment on your posts? While you may not allow this in the body of the comment, what about allowing a hyperlink for their name? Many comment systems allow a person to enter their name and a link. If this link goes to a page where copyright infringement is occurring, you could have a problem. Given black hatters use this technique to drive traffic to scraped content; this is a very real problem.

Blogs

You will read many comments online suggesting a blog is not responsible for comments left by visitors. To be blunt, this is incorrect. The law applies to whatever site is defined as an internet service provider pursuant to section 512(k)(1) of the federal code:

(1) Service provider.—
(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

Courts have uniformly interpreted this provision as being extremely broad and including blogs. In a 2003 decision, one judge noted:

“[a] plain reading of [17 U.S.C. 512(k)] reveals that ‘service provider’ is defined so broadly that we have trouble imagining the existence of an online service that would not fall under the definitions . . . .”

[In Re: Aimster Copyright, 252 F. Supp. 2d 634 (7th Cir. 2003).]

In practical terms, you are responsible for the content and links posted in the comments section of your blog.

Solutions

How can a blogger protect themselves from the risk of being sued for copyright infringement? There are two approaches.

The first approach is simple. Close your comments section and any other areas on the blog a visitor can post content. If there is no content, there is no infringement. Of course, most sites try to build up a following by creating an interactive environment, so this isn’t a great business approach. Fortunately, there is another alternative.

The second approach is to get your blog into compliance with the Digital Millennium Copyright Act of 1998. This Act provides a “safe harbor” from copyright infringement claims based on content uploaded by a user. So long as you comply with the detailed requirements of the law, you cannot be sued for monetary damages.

How does one comply with the DMCA? Your site needs to go through numerous steps including selecting and registering a DMCA agent, creating two policies related to handling complaints, alterations to your terms of use and privacy policy, developing repeat infringer policies and setting up timing schedules for handling complaints as detailed in the law.

Is complying with the DMCA a pain in the derriere? Yes. Is it worth it? Absolutely. The ability to eliminate the risk of being sued for copyright infringement is more than worth going through the compliance process. If you are a blogger who allows visitors to comment and interact with your blog, contact me today to eliminate your copyright infringement risk.

Richard A. Chapo, Esq.

The content on this website is intended to be educational and is not specific legal advice for your situation. The information is not updated. This site and blog constitutes a communication, solicitation and advertisement pursuant to relevant rules of professional conduct and professional codes in California.