Avoiding legal fires in the blogosphere

I was talking last year about potential fires in the blogosphere and gave some thoughts (below). Obviously things are far more tense now than in 2007. If I was to add a “p” word to my list below then it would be “Promiscuity” – ie, the promiscuous nature of new media in constantly seeking new relations means that things can get out of hand very quickly and secret discussions go viral before you can say ‘Dave Walker‘. Trying to silence a blogger with a ‘cease and desist’ order is putting gas on the fire. What is whispered in quiet rooms gets shouted on the rooftops.

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The post below was originally uploaded in January 2007. I am reposting it now because of the current wave of legal actions regarding blogs, in particular the Dave Walker legal nightmare which is gaining a lot of attention, but also because of this weeks talk of taking down offending blog posts.

Original: Beware The Blogosphere: Here Be Dragons (2007)

The age of blogging innocence appears to be over. We have to be careful with what we say and what we upload. With the legitimacy of the blogosphere comes responsibility. I really hope it stays small-townish and relational . .. but its also quite possible that 2007 will be the year where lawsuits will add an element of terror to blogging. God forbid we become so paranoid about blogging that we become as hesitant as haemophiliacs IN A RAZOR FACTORY!!. [no insult to haemophiliacs intended – PLEASE dont sue me!!] Nothing is completely clear since the online world is new territory but here are some rules that might save you from doing something stupid and some ways to extinguish the blaze if a fire ignites.

Neverheardofpryomaniacs-PoiPoint to files rather than republish them. YouTube makes this easy for videos by giving you html code for your blog that points to their source – and they take care of the bandwidth and storage issues. When I use a mp3 music file in a viewer, i point to its original location.

NeverheardofpryomaniacsprivNot everyone wants to be outed publicly or have their mug on your video. Ask first and if in doubt, don’t publish it.

Neverheardofpryomaniacs-PdfArticles in .PDF format belong to someone. Give them rights and control over the originals by not republishing them on your own site. Then the author doesn’t have to chase down a hundred copies to make an edit.

Neverheardofpryomaniacs-PerCreative Commons is still the best way to show everyone your copyright [or in this case, copyleft]. I have been using this one for years and it might no longer be the best but at least it says what i want it to say – and people who want to appropriate my stuff do not have to email me. As for images, the original match that i stole. . . appropriated and edited for this post is found on one of the sites Phil Johnson blogs on called Pyromanics. Such an edit removes copyright, [edit – Phil adds clarification to this in the comments below – not as simple as i just said] as Phil once said when he gave some good advice on image editing. Thanks Phil!

Neverheardofpryomaniacs-PhoDon’t put other people’s phone numbers on your blog. This is taken as an invitation to harrass them. Don’t even put their email address on your blog, unless they ask. In which case write it in code [name at hotmail dot com] so the spambots miss it.

Hope that helps a little. We should expect some banter and opposition. Hopefully it wont get our of hand and we will learn to live with each other online. If someone offends you or abuses your rights, go to them in a friendly manner and get it sorted. If they wont listen, add one or two others to the CC on your email. Only then do you start BCC’ing some authority figures. And if you are part of Jesus’ family then don’t take your brothers or sisters to court. That not the family way.

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Andrew

Andrew Jones has been blogging since 1997. He is based in San Francisco with his two daughters but also travels the globe to find compelling stories of early stage entrepreneurs changing their world. Sometimes he talks in the third person. Sometimes he even talks to himself and has been heard uttering the name "Precious" :-)

18 Comments

  • The exception re: PDFs is that when an article that isn’t available online, I get permission from my editor (if I am the author) or the author to copy it in PDF format and then circulate it to interested bloggers (e.g., the Living Church article about US-UK Anglican dialogue, a piece I really wanted to get out there as it was the first time a US Episcopal publication had addressed this topic). But I don’t post without permission.
    As far as emails, my rule of thumb is not to post contents from letters or emails on a blog or list-serve without permission of the author. I know the law is a bit shaky on who own the rights to an email but this tactic keeps my head above water. Two exceptions: if I get a letter that damns me to hell or praises me to heaven, it might get republished though I am careful not to use the author’s name or any identifying info. And in a case like Dave Walker, where I need to justify why a post was removed – in that instance, I would definitely post the cease and desist order.
    Personally, I don’t mind if my material is reposted (as long as the content isn’t changed) if it’s a non-commercial site. If it’s a commercial site, then I expect to get paid a reprint fee and will go to bat if need be. What really gets my goat is when I interview someone and then some bad blogger picks up their answer and then slams me noting “Becky said …” when in fact, it was the interviewee’s comments — my efforts to get them to change their texts have been unsuccessful. I would hope that bloggers realize that interviewers don’t necessarily agree with their subjects.
    I agree with your approach to conflict – I’d add that if you’re really, really, really angry with what a blogger posted – take a walk, chill with a glass of wine, email a few friends and blow off steam – and then once you’re temperature is back to normal, send the person an email. (Speaking as one who doesn’t always practice what she preaches). I try to email the person first and if they won’t respond, then I forward the correspondence to mutual friend(s) and ask us to pray regarding how to proceed. One thing I’ve learned is if someone is 100% convinced they’re right and you are a &^%$#@!*, then all you can do is pray.

  • I would like to know if I qualify to receive cookies as mentioned in your response to a certain apprising brother’s comment in a previous thread. My preference is home baked chocolate chip, please. Assuming that I qualify, of course.

  • Andrew,
    I work for a large webhosting company (which I would rather not name – not iPower) and sometimes work in the Abuse/Security queues, so I have handled issues like this from iPower’s side.
    I think your advice here is almost all dead on. I would however disagree with one point, the idea that involving lawyers is a bad idea.
    Let me offer some context from my experience that might help:
    *) We normally do not require the removal of content because someone claims slander or liebel. Not because our company are great defenders of free speach, but simply because we do not want to be held liable in a lawsuit. We simply ask for a court order to remove content. There are lawyers and judges for deciding if something is liable or not.
    If we are going to take any action at all, we always provide the full text of the complaint to the customer and we also call them if we have suspended any part of their site in any way.
    Once we have that we act quickly and will suspend an entire site if the site owner does not reply to our requests to remove content.
    *) There are three real exceptions here:
    a) Child porn or anything like that. We remove that right away and contact the authorities. Then we take a long, hot shower …. cause any report has to be confirmed.
    b) Copyright claims. In the US there is a law for this (the DMCA – awful law overall, but it has good provisions for ISPs). In the case of claimed copyright infringement, we send the person the claim, they then have a period of time to reply with a counter notice.
    The claims both have basically two sections, first is all the information needed to track you down and sue the crap out of you: full legal name, address, etc; secondly is a notarized, legally binding claim that the other party is in the wrong.
    ( http://pturing.firehead.org/headsurfer.net/legal.html – this is a very humorous example of a notice and counterclaim … it worked, the site stayed online.)
    As long as the DMCA complaint is valid, and the person counter files, we will leave the content online until a court says take it down. We get something called the Safe Harbor Clause which means we are not liable if it is found to break any laws.
    If a copyright owner sends us a notice, for your site, and you file a counter claim on something you do not have right to distribute, you have given the copyright owner every bit of information they need to take you to court, and have also given them proof you knowingly distributed the content and that opens you up to punitive fines. 98 times out of 100 when we get a DMCA claim the person either removes the content or fails to reply at all and its taken offline.
    3) If our upstream providers or vendors decide that the content must be removed or they will turn off an entire server (hundreds of sites taken offline).
    At least at our company, it is pretty hard to get content taken off someone else’s site without a court order. If someone says something mean about you, the best thing to do is ignore it. The internet is full of morons and trash.
    If someone from your ISP contacts you about something on your site, do your best to be nice to the abuse team people that contact you, ask for details, be willing to listen, and if its a judgement call like libeil, just calmly ask them to release your contact information to the complaint so they can sue and a court can make a ruling on that claim.
    Involving lawyers does four good things:
    1) It makes you think more practically: Do I really care enough about this to spend a months income on this? Its a gut check for you when you are angry.
    2) If your lawyer laughs at you, you get a reality check quite quickly.
    3) If you are a clear victim, getting sued gives you a chance to get pro-bono legal help instead of just sympathy.
    4) If there is an on-going legal issue a webhost is going to be even more likely to wait until a court orders something.

  • My take on Andrew’s read is he thinks lawyers is a bad idea between Christian brothers on the ground that we should try our best to solve our problems within the community without involving a secular authority.
    But there’s also a very practical matter – any lawyer worth his salt isn’t exactly cheap. Unless the blogger is also a high priced speaker/best selling author, I don’t see how they can really afford to hire a lawyer even in a case like Dave Walker, where he’s clearly in the right. We have groups like Volunteer Lawyers for the Arts in the US that can offer significantly reduced fees but it can still be cost prohibitive. If the case is high profile enough (I’d argue Dave Walker’s qualifies) perhaps a lawyer (or a team) might want to take the case on pro bono.

  • I’m also still a little concerned about linking to YouTube videos. I looked up this from the site wizard who would advise not to link to uploaded TV shows as it is probably encouraging illegal downloading. Is it too legalistic, also considering the onging lawsuit between Viacom and Youtube for instance, to say that bloggers – especially Christian bloggers – might be well advised to steer clear of this area? What do you think?

  • not sure – you might have a good point. when i get a moment i will check into it
    anyone else know about linking to youtube videos or playing them on your blog?

  • Sorry…put the comment on the wrong post (above).
    “And if you are part of Jesus’ family then don’t take your brothers or sisters to court. That not the family way.” Good advice. And thanks for the heads-up!

  • I liked nate’s link to John Gabriel’s Greater Internet Jerk Theory (Normal People + Internet + Lack of Ability to see each other’s Face == Arrogant Jerks).
    My blog has some commenting guidelines, but I sum them up with the XKCD version of the theory.

  • An update on what led to this post by Andrew:
    This Open Letter to Steve Camp outlines my initial thoughts/intentions/motivation for writing to Ken Silva’s ISP. It also covers various issues relating to the “Ken Silva vs. Richard Abanes” controversy, including:
    1. Bible Study notes on key passages being discussed,
    2. the actual contents of my email to Silva’s ISP,
    3. observations about the current state of the church,
    4. an indictment of today’s so-called Online Discernment Ministries, and
    5. documentation of Ken Silva’s violation of federal copyright/privacy laws, and other issues.
    The open letter should answer most questions and addressed the widely-read article by Steve Camp titled “Battles in the Blogsphere.”
    This is my final word on the issue. Those who have ears to hear, and eyes to see, will both hear and see the truth.
    Proverbs 18:13 reads: “He who answers before listening—that is his folly and his shame.”
    Proverbs 18:17 tells us: “The first to present his case seems right, till another comes forward and questions him.”
    Richard Abanes
    Pop Culture Mix

  • Nice work on the matches. You said:
    Such an edit removes copyright, as Phil once said when he gave some good advice on image editing. Thanks Phil!”
    To be clear, what I said was that a parody can’t necessarily be prohibited by copyright. You couldn’t stop Mad magazine from caricaturing you by claiming you own rights to your own image. (And you wouldn’t automatically be able to stop TeamPyro from putting you in a satirical PoMotivator® poster by having a copyright attorney write us a threatening letter.)
    However, editing an image you lift from another source doesn’t automatically release it from copyright. I wouldn’t want anyone to think I said it’s OK to steal any image you want to as long as you revise it somehow.
    Copying major design elements or borrowing graphics from someone else’s website isn’t usually a great idea, even when (strictly speaking) legal. It’s almost always better to ask.
    Of course, it’s unlikely anyone would want to protect a copyright on a burnt match he scanned with a scanner. You’re certainly welcome to mine any time, Andrew. But there are some people around the blogosphere who might grouse or threaten, so if in doubt, ask.
    (Sorry I missed this post last week. I’m just getting caught up.)

  • Two minor points re: parody.
    A large corporation can take one to court for copyright infringement esp. if one is using the image for commercial purposes. So, even if you are in the right, some people can bury you in paperwork and lawyers.
    Also, there’s a difference between attacking those in power and slamming private citizens. (As a religious satirist, I solve this dilemma only by targeting religious people in power.) Here’s I’d bring in a lawyer to hone in the fine points.

  • David, I hope you’ll excuse me a long comment, since I’m up to my neck in the Dave Walker case.
    In general I find myself taking a more radical stance in the whole area of Civil Liberties than I would have thought possible 5 years ago. It is largely to do with this kind of thing: http://tinyurl.com/lostliberties1997
    *** On da Silva / Abanes
    The one point that seems to me to be crystal clear is that it is wrong that the ISP is required to make a decision about what to do with the article. It is nothing to do with them – except that the law says it is.
    Whether all criticisms should be preserved is a more difficult question. On balance I would say yes – and would give the primacy to the principle of free expression.
    *** On PDFs and Pointing to Files
    My policy is actually the reverse – I usually copy files that I am reviewing or commenting on locally, for several reasons (while having a strong policy of asking for permission to cross-post articles or cartoons etc.)
    First of all many sites don’t like direct linking to e.g., pdf files.
    Secondly, URLs change – government sites especially move URLs around every time a Minister decides that he needs a rebranding for political reasons. Usually blogs and newspapers are better, but some blogs can spontaneously vanish for all sorts of reasons – when they arguably should be preserved as part of the necessity for an accurate and honest public record. This also happens with – for example – press release archives of lobby groups.
    Thrdly, when there is no hope of a link being useful, then it is sometimes necessary to copy the material locally.
    I do the reverse if the other site has a specific policy requesting links (for example if a local copy would reduce their revenue), and there is a reasonable.
    *** On lawyers
    A lawyer can (maybe) help you judge the fine points of the law, but you must take responsibility yourself for judging whether the finer points of the law are just and moral or not. That is a consequence of the utilitarian ethic of the legal profession (“everybody must have access to the best legal advice and the same legal process”) – by definition they do not have standards of right and wrong as a profession; it is all about process.
    The law is not “objective” – it is the result of a political process that should ideally implement the values of society. There is no guarantee that it is “right”, so choosing whether to comply with the letter of the law is an ethical decision. Choosing whether to comply with an unacceptable law while seeking for it to be changed is also an ethical decision.
    Quite how you relate New Testament teaching about obeying the law to a situation where the law enshrines disrespect for human beings “created in God’s image” is one I leave for the reader. Does it apply here? I’d argue that we would need to reflect on the difference between a non-democratic society (e.g., Rome) and one where a democratic system makes a more just society conceivable. Whether one should obey laws inimical to free expression in a democratic society is … an interesting question. In the past people have gone to prison in this country for publishing Bibles when it was illegal. WWJD?
    *** On takedown notices
    One problem with lawyers is that they can give a spurious authority; a letter demanding “Cease and Desist” need be no more than a list of untrue allegations – it’s only a letter that someone has been hired to write, but because it comes with a “legal” imprimatur people (and especially hosting companies) get intimidated.
    In the UK at least, I think we have far too much respect for lawyers writing letters about material on internet sites – I would term it the privatisation of censorship. This is a really serious problem imo.
    *** On the Dave Walker Case
    My basic opinion on the Dave Walker case is that the allegations of defamation are nonsensical, and he should have sent them packing as one should send someone packing who claims that the moon is made of cheese – having followed the case and read the posts, I put it that strongly. I won’t speculate here about what I think the reasons are for the Cease and Desist, out of respect to the Tall Skinny Kiwi.
    Read them here: go and read them here: http://www.tinyurl.com/davewalkerreposts.
    I don’t hold his decision against Dave (Walker not the TSK), because letters from lawyers look very impressive – and three or four hours notice is not very much when faced with a general allegation against two years of material in the middle of the Lambeth Conference.
    Personally, I also have a great deal of contempt for those making the allegations since they were attempting to take away the one gathering place available for ex-employees of a two hundred year old business that is ceasing to exist, and that itself is an inhuman act. I wouldn’t see “but we didn’t know” as an excuse for this action, rather as an admission of inadequate research.
    *** On UK Law
    Andrew >I work for a large webhosting company
    You don’t say whether you are based in the UK or not (at least on this comment).In the UK there are severe problems with the whole process – the Usmanov incident and the vanishing of Boris Johnson’s website last year demonstrated that. This is one of the reason why many serious political blogs in this country are hosted elsewhere – not because that releases us personally from any legal actions, but because it keeps material available to the public when webhosts in this country may well remove it to “play safe”. In my opinion we need a strong legal presumption in favour of free expression.
    There are serious problems with Law around ISPs here as well – particularly with webhosts having co-liability for material they host once they have been informed that it may be defamatory and if that subsequently turns out to be the finding.
    The logic of the need to manage business risk sets up a ratchet towards closing down free debate – and that is a tendency in the wrong direction.
    Polemically – what sort of “free, democratic” country is it where political websites have to be hosted abroad to prevent debate being pre-emptively stifled by allegations that may or may not be true that just happen to come on a legal letterhead?
    We now even have laws being passed in other countries (USA) seeking to protect *their* citizens from *our* libel laws.
    I’ll stop there – but thanks for the post (and hopefully for letting the comment through).
    Corrections welcome for anything I have wrong.
    Rgds
    Matt Wardman

  • David, I hope you’ll excuse me a long comment, since I’m up to my neck in the Dave Walker case.
    In general I find myself taking a more radical stance in the whole area of Civil Liberties than I would have thought possible 5 years ago. It is largely to do with this kind of thing: http://tinyurl.com/lostliberties1997
    *** On da Silva / Abanes
    The one point that seems to me to be crystal clear is that it is wrong that the ISP is required to make a decision about what to do with the article. It is nothing to do with them – except that the law says it is.
    Whether all criticisms should be preserved is a more difficult question. On balance I would say yes – and would give the primacy to the principle of free expression.
    *** On PDFs and Pointing to Files
    My policy is actually the reverse – I usually copy files that I am reviewing or commenting on locally, for several reasons (while having a strong policy of asking for permission to cross-post articles or cartoons etc.)
    First of all many sites don’t like direct linking to e.g., pdf files.
    Secondly, URLs change – government sites especially move URLs around every time a Minister decides that he needs a rebranding for political reasons. Usually blogs and newspapers are better, but some blogs can spontaneously vanish for all sorts of reasons – when they arguably should be preserved as part of the necessity for an accurate and honest public record. This also happens with – for example – press release archives of lobby groups.
    Thrdly, when there is no hope of a link being useful, then it is sometimes necessary to copy the material locally.
    I do the reverse if the other site has a specific policy requesting links (for example if a local copy would reduce their revenue), and there is a reasonable.
    *** On lawyers
    A lawyer can (maybe) help you judge the fine points of the law, but you must take responsibility yourself for judging whether the finer points of the law are just and moral or not. That is a consequence of the utilitarian ethic of the legal profession (“everybody must have access to the best legal advice and the same legal process”) – by definition they do not have standards of right and wrong as a profession; it is all about process.
    The law is not “objective” – it is the result of a political process that should ideally implement the values of society. There is no guarantee that it is “right”, so choosing whether to comply with the letter of the law is an ethical decision. Choosing whether to comply with an unacceptable law while seeking for it to be changed is also an ethical decision.
    Quite how you relate New Testament teaching about obeying the law to a situation where the law enshrines disrespect for human beings “created in God’s image” is one I leave for the reader. Does it apply here? I’d argue that we would need to reflect on the difference between a non-democratic society (e.g., Rome) and one where a democratic system makes a more just society conceivable. Whether one should obey laws inimical to free expression in a democratic society is … an interesting question. In the past people have gone to prison in this country for publishing Bibles when it was illegal. WWJD?
    *** On takedown notices
    One problem with lawyers is that they can give a spurious authority; a letter demanding “Cease and Desist” need be no more than a list of untrue allegations – it’s only a letter that someone has been hired to write, but because it comes with a “legal” imprimatur people (and especially hosting companies) get intimidated.
    In the UK at least, I think we have far too much respect for lawyers writing letters about material on internet sites – I would term it the privatisation of censorship. This is a really serious problem imo.
    *** On the Dave Walker Case
    My basic opinion on the Dave Walker case is that the allegations of defamation are nonsensical, and he should have sent them packing as one should send someone packing who claims that the moon is made of cheese – having followed the case and read the posts, I put it that strongly. I won’t speculate here about what I think the reasons are for the Cease and Desist, out of respect to the Tall Skinny Kiwi.
    Read them here: go and read them here: http://www.tinyurl.com/davewalkerreposts.
    I don’t hold his decision against Dave (Walker not the TSK), because letters from lawyers look very impressive – and three or four hours notice is not very much when faced with a general allegation against two years of material in the middle of the Lambeth Conference.
    Personally, I also have a great deal of contempt for those making the allegations since they were attempting to take away the one gathering place available for ex-employees of a two hundred year old business that is ceasing to exist, and that itself is an inhuman act. I wouldn’t see “but we didn’t know” as an excuse for this action, rather as an admission of inadequate research.
    *** On UK Law
    Andrew >I work for a large webhosting company
    You don’t say whether you are based in the UK or not (at least on this comment).In the UK there are severe problems with the whole process – the Usmanov incident and the vanishing of Boris Johnson’s website last year demonstrated that. This is one of the reason why many serious political blogs in this country are hosted elsewhere – not because that releases us personally from any legal actions, but because it keeps material available to the public when webhosts in this country may well remove it to “play safe”. In my opinion we need a strong legal presumption in favour of free expression.
    There are serious problems with Law around ISPs here as well – particularly with webhosts having co-liability for material they host once they have been informed that it may be defamatory and if that subsequently turns out to be the finding.
    The logic of the need to manage business risk sets up a ratchet towards closing down free debate – and that is a tendency in the wrong direction.
    Polemically – what sort of “free, democratic” country is it where political websites have to be hosted abroad to prevent debate being pre-emptively stifled by allegations that may or may not be true that just happen to come on a legal letterhead?
    We now even have laws being passed in other countries (USA) seeking to protect *their* citizens from *our* libel laws.
    I’ll stop there – but thanks for the post (and hopefully for letting the comment through).
    Any corrections welcome.

  • thanks matt
    hey – phil and becky – i am just taking a quick break from my short holiday. i consider you both far more aware than I in the parody-editing-copyright stuff. thanks phil for the clarification. i will edit my post when i get back to reflect your thoughts.

  • Matt – there has been issue with PDFs when the author has pulled it for various reasons but because it was posted on multiple sites, he and others had to chase down all the bloggers and ask them to pull it. for that reason, and since then, i have tried to point to pdfs rather than republish them

  • >As far as emails, my rule of thumb is not to post contents from letters or emails on a blog or list-serve without permission of the author. I know the law is a bit shaky on who own the rights to an email but this tactic keeps my head above water.
    I think you can nuance that by the policy you have on your website combined with a dedicated enmail address – and you have the editorial and reporting rights within copyright law anyway.
    I currently have a clause in my T&C that unless confidentiality has been agreed in writing, I will publish all Cease an Desist letters and related corresondence. But I admit that is slightly tactical !

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