Category: Legalities of Blogging

• DMCA Takedown FTW

  I think I do a decent job monitoring my blogs with my sites’ widgets and Google Analytics. I like to see where my readers live and how they ended up on my sites. When I see that someone got to my blog from a site that’s unfamiliar to me, I try to find the post that linked to my site to see what it said.

  

  This week, someone got to The Undeniable Ruth via a blog on BlogSpot. I checked out that blog and found that the blogger didn’t write a post that referred to me or a topic I’ve written about. She copied an image from my post about studying in the pool. She mentioned the name of the post she got the image from, but she didn’t ask my permission to use the image or even give me an attribution. Unfortunately for her, she copied one of the few images that I personally took with my camera phone and own the copyright to it. I decided to send a Digital Millennium Copyright Act (DMCA) takedown notice to Google, which owns BlogSpot.

  The DMCA is a law that provides a safe harbor to companies that don’t control the content on their sites. They have to remove or disable access to the infringing material when they receive a DMCA takedown notice or else they can be liable for copyright infringement. To qualify for protection under the DMCA, you have to register a designated agent with the U.S. Copyright Office. This is the person you send the takedown notice to.

  Google has a DMCA agent, so I sent them a takedown notice to get my picture taken off BlogSpot. A takedown notice is a simple letter that must include the following:

  1. Your physical or electronic signature,
  2. The identity of your work that is allegedly being infringed,
  3. The specific URL for the website where the infringement is occurring,
  4. Your contact information (i.e., your address, telephone number, and/or email address),
  5. A statement that you have a good faith belief that the material violates the law or the copyright owner’s rights, and
  6. A statement, under penalty of perjury, that the notice is accurate.

  I emailed my takedown notice to Google yesterday and I got a response today that informed me that the post was taken down. I tried to visit the BlogSpot post where my photo was published, and verified that the blog post was taken down. I thought they were only going to remove the photo. She can put the post back up if she wants, just not with my picture.

  If you create content, it important to keep an eye on your analytics so you can detect when someone steals your work. I was pleased to see that the DMCA takedown process was fast and easy and that Google was responsive to my notice.

  If you detect someone’s stolen your content, consult an attorney to determine your options for recourse.

  Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
  Please visit my homepage for more information about Carter Law Firm.

  July 12, 2012

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  Ruth Carter

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  Intellectual Property, Legalities of Blogging, Photography & the Law

  Blogging, BlogSpot, Carter Law Firm, Copyright, Copyright infringement, copyright law, Copyright lawyer, Digital Millennium Copyright Act, DMCA, DMCA agent, DMCA takedown notice, Internet Law, legalities of blogging, Ruth Carter, The Undeniable Ruth

• Can I Publish an Email in a Blog Post?

  

  My friend in California recently contacted me and said that he received an email from a professional association he belong to and that he wanted to share it in a blog post along with his response. As an Arizona attorney, I can’t provide legal advice to California clients, but it made me think about what potential legal repercussions I could face if I wanted to publish an email in a blog.

  Defamation
  Defamation usually involves making a false statement about a person or entity to a third party that damages their reputation. Publishing a blog post is definitely a communication to a third party, but there’s no false statement if you publish the email as it was written and if your response contains your true reaction to the message.

  Public Disclosure of Private Facts
  Public disclosure of private facts is an invasion of privacy claim where you tell the truth about a person but you release information that a reasonable person would expect you to keep confidential and they would be highly offended if you shared it. This is the type of claim you could face if you break up with your significant other and release the sex tape you made during your relationship.

  In terms of publishing an email I received, I’d review the message and the association’s rules to see if communications need to be regarded as confidential. If not, I probably wouldn’t hesitate to republish it in a blog because there’s probably nothing in it that would be high offensive to share with others.

  False Light
  False light is a claim where you’re accused to telling the truth about someone but you manipulate it in a way that suggests something that is false. If I were going to republish an email, I’d probably publish the entire message to avoid being accused to manipulating the message to make the person look worse than they are.

  These legal claims are all state law claims. If I publish an email written to me by a person or on behalf of an organization and they get pissed at me, they’re going to sue me where they live. I’d have to check the exact verbiage of these laws in that state, not just my home state. I prefer  to not set myself up to be sued across the country and have to go there to defend myself.

  EDIT: My lawyer friend reminded me of one more claim you have to think about if you’re going to publish an email in a blog post: Copyright Infringement.
  The person who wrote the email likely has copyright rights in their verbiage, include the right to decide where it’s reproduced and displayed. Most people don’t register their copyrights with the U.S. Copyright Office, so if you wait three months to publish your blog post, they can only come after you for their actual damages, which will probably be lower than statutory damages. In some cases, they could still get a decent settlement.

  And as always, if you’re going to push the envelope with your blog posts, it’s easier and cheaper to consult a lawyer (like me!) in advance than to have to hire one after you’ve been sued and you have to defend yourself.

  Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
  Please visit my homepage for more information about Carter Law Firm.

  July 5, 2012

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  Ruth Carter

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  Intellectual Property, Legalities of Blogging

  Blogging, blogging law, Carter Law Firm, Copyright, Copyright infringement, Defamation, false light, First Amendment, Invasion of Privacy, legalities of blogging, online defamation, public disclosure of private facts, Ruth Carter

• I <3 The Oatmeal

  

  I want to use this week’s post to voice my support for Matthew Inman, aka The Oatmeal. He draws comics that make me laugh so hard, especially the ones about real life situations. I can always count on him to lift my mood. I saw him at his book signing at Changing Hands in Tempe, and he’s the sweetest guy.

  For those of you who haven’t been following the story, Oatmeal was recently threatened with a lawsuit if he didn’t pay FunnyJunk LLC $20,000. FunnyJunk is a website where people can post humorous photos and it apparently it was hosting hundreds of Oatmeal’s images in violation of his copyright. Oatmeal wrote a post about what was happening and accused FunnyJunk of making $100,000+ off his work. FunnyJunk claimed this was a false accusation of willful copyright infringement.

  Some people might be been scared by the threat of a lawsuit, but not Oatmeal. He published an awesome blog where he refused to pay the $20,000 and instead announced that he’d try to raise $20,000 for charity in a venture called Operation BearLove Good, Cancer Bad. Oatmeal ended up raising over $200,000 for charity and was sued by FunnyJunk’s lawyer in the process. Hopefully that case will be dismissed soon and Oatmeal can disseminate the funds.

  As a lawyer I initially cringed when I saw Oatmeal’s plan, but I was relieved when I saw that he has an awesome lawyer who appears to be doing the appropriate lawyer things on Oatmeal’s behalf. I think Oatmeal’s grace and strength in the face of adversity is admirable. I think if you feel you’re being unjustly accused of a wrongdoing, you should stand up for yourself and not do whatever you have to do to make the threat go away. I applaud Oatmeal for addressing this situation very publicly and showing his opposition a lot of respect.  When Oatmeal’s fans starting calling FunnyJunk’s lawyer, he told them to stop and to donate to Operation BearLove Good, Cancer Bad if they wanted to help.

  Much love to you Oatmeal! Thank you for demonstrating the power and influence you can use for good when you build a solid following by doing excellent work. Your hilarious comics and charming personality made you what you are and I’m so glad you didn’t back down from this fight. I hope your legal troubles are resolved soon.

  June 28, 2012

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  Ruth Carter

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  Geek Law, Intellectual Property, Legalities of Blogging

  Carter Law Firm, Charles Carreon, Copyright infringement, FunnyJunk, Internet Law, Matthew Inman, Operation BearLove Good Cancer Bad, Ruth Carter, The Oatmeal

• Creative Commons Images For Your Blog

  

  I talk about blogging a lot, both about general blogging information and the legal side of blogging. One of the things I always talk about is the images. Every blog post needs at least one picture. It makes the post more interesting and it can help you portray your subject matter or the emotional impact of your message.

  I am not a photographer, so I have to rely on other sources for my photos. If you don’t have a photo that you yourself have taken to use with your post, you can find quality images on Creative Commons. Creative Commons is a license that photographers put on their images that allow you to use them. The particular license tells you how you’re allowed to use it and what credit you have to give to the image owner.

  Attribution only – You only have to give credit to the image owner. You can modify the image and use it for   commercial purposes

  Attribution-ShareAlike – You may modify the original work and use it for commercial purposes, but you must allow others to use your work in the same way. You must give an attribution to the original image owner.

  Attribution-NoDerivs – You may use the image for commercial purposes but you can’t alter the image in any way. You must give credit to the image owner.

  Attribution-NonCommercial – You may modify the original image but you may not use it for commercial purposes. You must give an attribution to the image owner.

  Attribution-NonCommercial-ShareAlike – You can modify the image but you must allow anyone to use what you create. You can’t use it for commercial purposes and you must give credit to the image owner.

  Attribution-NonCommercial-NoDerivs – You may only use the image, as is, for non-commercial purposes. You may not modify the image, and you must give an attribution to the image owner.

  When I look for photos for my blogs, I always pick photos that come with an Attribution only or Attribution-ShareAlike license, and I encourage everyone to do the same. When I add a photo to my blog, I put the name of the image and the attribution to the image owner in the caption, and make the caption visible on the post. In the image description, I include a link back to the original image, which is usually on Flickr.

  I use these license because they are the most user-friendly. If you need to crop a photo, these licenses will allow you to do that. I also recommend always using photos that you’re allowed to use for commercial purposes.  Even if you don’t make money on your blog from ads or by having you blog connected to a business now, you might in the future. If you start making money via your blog and you have images on your blog that you’re not allowed to use for commercial purposes, you have to go back and remove those images from your site. It’s easier in the long run if you have permission to commercialize all of your images from the start.

  If there’s an image you really you want to use on your blog, but it doesn’t come with a Creative Commons license, you can always ask the image owner if you can use it. I have standing agreements with Devon Christopher Adams and Sheila Dee because I ask to use their photos so often.

  May 24, 2012

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  Ruth Carter

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  Intellectual Property, Legalities of Blogging, Photography & the Law

  Blogging, Carter Law Firm, Copyright, Creative Commons, Creative Commons icons, Creative Commons image, Creative Commons photos, Creative Commons pictures, Devon Christopher Adams, Flickr Creative Commons, free to use images, legalities of blogging, royalty free images, Ruth Carter, Sheila Dee

• When Can Someone Post Photos Of You Online?

  

  I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

  

  Pictures of You in Public
  You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

  If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

  The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

  Pictures of You in Private Venues
  When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

  Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

  There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

  When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

  If you want more information about the legal rules regarding social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I also maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

  May 3, 2012

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  Ruth Carter

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  Cyberbullying & Cyberharassment, Intellectual Property, Legalities of Blogging, Photography & the Law

  Blogging, Carter Law Firm, expectation of privacy, Facebook, Facebook photo privacy, Flickr, Internet Law, internet privacy, Invasion of Privacy, legalities of blogging, post pictures online, Ruth Carter

• Ruth Carter’s Speaking Schedule – May 2012

  

  May is going to be an exciting month for me because I have four speaking engagements in Phoenix! I’m really excited to get out and talk about intellectual property and social media law. I like to keep my talks casual, interactive, and provide useful information to the audience.  I hope you’ll come out and have fun with me. Here’s where you can find me . . .

  Trademark Basics
  Wednesday, May 9, 2012 – 6pm
  Midweek Mind Tweak – Co+Hoots
  This is an interactive discussion about what a trademark is, the strength of attendees’ trademarks, and the benefit of registering your trademark with the U.S. Patent and Trademark Office.

  Why You Need a Social Media Policy
  Wednesday, May 16, 2012 – 5pm
  Midweek Mind Tweak – Co+Hoots
  Every company needs a social media policy for their employees, but if you create one that is too broad, you might have to pay over $10,000 for violating the National Labor Relations Act. It’s a problem that is easy to fix, if you know what the law is.

  The Legalities of Blogging
  Wednesday, May 23, 2012 – 12pm
  GP Brownbag – Gangplank Chandler
  A spoke a few weeks ago at Gangplank Academy about the legal side of blogging, and they asked me back to present a condensed version as a brownbag discussion. I’ll be presenting the 8 questions you should ask yourself before you publish a blog post.

  Adapting Licensed Properties to Comics
  Thursday, May 24, 2012 – 7pm
  Phoenix Comicon – Phoenix Convention Center
  I’m so excited to speak at Phoenix Comicon. The thought fills my little geek heart with joy. I’m going to be talking with sci-fi and comic book fans about copyright issues related to creating fan fiction, fan art, and slash fiction. It’s going to be so much fun!

  I hope I get to see you at one or all of my talks!

  April 30, 2012

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  Ruth Carter

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  Employment Law, Intellectual Property, Legalities of Blogging

  Blogging, Carter Law Firm, Co+Hoots, Copyright, copyright law, Copyright lawyer, Fair Use, Gangplank, Internet Law, Internet lawyer, legalities of blogging, National Labor Relations Board, NLRA, Phoenix, Phoenix Comicon, Ruth Carter, Social media policy, trademark law basics

• 8 Questions to Ask Before Posting a Blog

  

  I taught a class this week at Gangplank, an awesome collaborative co-working space in Chandler, on some of the legalities of blogging. It was part of Gangplank Academy. As I was going through my notes in preparation of this class, it occurred to me that there are some critical questions every blogger should ask themselves before publishing a new blog post.

  1. Is all the information in your blog verifiable?

  2. Is every statement that isn’t verifiable indisputable?
  Statements like “My knee hurts like it’s going to rain tomorrow” and “My favorite color is blue” may not be verifiable, but there’s no one who can say those statements aren’t true.

  3. Do you accuse anyone of committing a crime?
  It’s one thing to say, “My neighbor gives me the creeps,” but you might get sued if you say, “In my opinion, my neighbor’s a pedophile.”

  4. Are you sharing any information that you learned in confidence?
  When you break up with your partner, don’t write a blog post sharing all the personal information you learned during the relationship like their weird fetishes and habits.

  5. Are any of your statements misrepresentations or half-truths?

  6. Do any of your statements insinuate anything that isn’t true?
  If you write a blog about how you don’t like seeing drug users in the park and you include a photo of a person lying in the grass with their eyes closed, they may be unhappy and sue you if they’re not a drug user but were only taking a nap.

  7. Is all your information public? Are you writing about a topic where your subject might have an expectation of privacy?
  Your neighbor has no expectation of privacy in how he looks naked if you saw him at a public nude beach. He does if you had to creep up to his house and peer through the cracks in his closed blinds to see him.

  8. Is all your information from reputable sources?
  If you copy or repeat someone’s defamatory statement, even if you didn’t know it was false, you might get sued for defamation.

  I love bloggers who push the envelope and sometimes it’s hard to know when you’re crossing the line. When in doubt, consult a lawyer who is a media expert and always follow my rule: “Never put anything online that you wouldn’t put on the front page of the newspaper.”

  March 29, 2012

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  Ruth Carter

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  Geek Law, Legalities of Blogging

  Blogging, Defamation, defamation lawyer, Gangplank, Gangplank Academy, Gangplank Chandler, internet defamation, internet defamation lawyer, Internet Law, Internet lawyer, internet libel, Invasion of Privacy, invasion of privacy lawyers, legalities of blogging, online defamation, Ruth Carter

• Courts Split on Shield Laws

  

  There is an ongoing debate in the state courts about whether bloggers can be protected by the “shield laws.” These are the laws that state that a reporter does not have to reveal the identity of an anonymous news source. The purpose of these laws is to encourage the dissemination of information.

  Shield laws are enacted at the state level and are in place in 40 of the 50 States, including Arizona. If you’re a blogger who is sued and you want to use a shield law to protect your source, you usually have to rely on the shield law in the state where you’re being sued, which is not necessarily the state where you live.

  So far, the courts in California and New Hampshire ruled that bloggers are protected by their States’ shield laws and the courts in Oregon and Illinois ruled that bloggers are not protected by their States’ shield laws. The verbiage for each State’s shield law is different, and some laws may be worded so narrowly that a court could fairly say that the law cannot apply to bloggers. It is interesting to note that the judge in the Illinois case ruled that bloggers aren’t protected by the shield laws in Illinois or California, and this ruling came down after a California court held that bloggers are protected by the California shield law. We’ll see if the blogger in the Illinois case appeals that ruling.

  In general, if you are a blogger who engages in the same activities as a journalist, then you should be protected by the shield laws the same as a journalist. If a person knew of insider trading at a Fortune 500 Company and he gave interviews to the Wall Street Journal and a blogger with a verbal agreement that the writers would not reveal the source of the information, why should a shield law protect the writer from the Wall Street Journal and not the blogger just because the blogger self-publishes?

  The courts should not make blanket judgments about whether all bloggers are protected by a shield law. Instead they should make a case-by-case analysis to see if a particular qualifies for protection. Many of the shield laws require regular publication. Based on that requirement, a blogger who only publishes sporadically may not be protected by a shield law.

  Arizona has a shield law that states: “A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.” I could see a blogger arguing that their blog is reportorial work. The challenge would be convincing a judge or jury that the law should extend to electronic publications, and not just newspapers, TV, and radio.

  A court may accept an argument that you’ve made a commitment to protect the anonymity of your sources. There was a case in Maryland in 2009 where a judge did not force a website to reveal the identities of anonymous commenters unless the plaintiff provided evidence to support its claims first. If you have a policy on your blog that states you’ll protect contributors’ anonymity, a court consider that in deciding whether you have to disclose your information source.

  The debate over whether bloggers qualify as journalists is not going away anytime soon, and since this is a state law issue, we may remain in this situation where some states protect bloggers under the shield law and others do not. Given that bloggers are accessible everywhere, this issue is likely to get more complicated in the future.

  February 2, 2012

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  Ruth Carter

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  Legalities of Blogging

  Arizona, Blogging, California, Illinois, Internet Law, law, New Hampshire, Oregon, Ruth Carter, Shield Law

• Bloggers Beware: Lessons from the Crystal Cox Case

  

  This post was originally published on The Undeniable Ruth in December 2011. 

  Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

  For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

  The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

  If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

  The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

  Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

  Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

  Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.

  January 25, 2012

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  Ruth Carter

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  Geek Law, Legalities of Blogging

  Blogging, Crystal Cox, Defamation, Internet Law, Invasion of Privacy, law, Personal Jurisdiction, Ruth Carter, Shield Law