Blogging and Podcasting

By Matthew J. Smith

New advances on the Internet and in personal technology enable users to access and disseminate information in new and innovative ways. Each new development presents a challenge to the legal community: to understand each new technological development, adapt traditional notions of applicable law to adequately protect the legal rights implicated, and foster the development of new law where needed. Blogs and podcasts are creating ripples within the legal community as well. Lawyers must understand how these tools influence their clients and how blogs and podcasts can be valuable advertising or marketing tools for their own purposes.

Blogs and podcasts can be valuable marketing tools for attorneys.

Web logs or blogs/podcasts. At their inception, blogs were primarily used for personal expression or communication on a localized level that arose out of Usenet posts, e-mail threads, and online diaries. Now, in addition to personal use, businesses, news organizations, political groups, and others have adopted this low-cost means of disseminating information. Podcasts originated as a method of audioblogging or stringing a series of audio and video media files together for playback on mobile devices or personal computers.

At its most basic, the creation of a blog or podcast is a form of expression and a publication (or republication) of information. Depending on the nature of the use of the blog or podcast, content creators can be considered both providers and users of interactive computer services by creating or editing a blog or podcast and may be held liable for third-party content under certain circumstances. Although there is currently no separate federal or state law specifically directed to blogs or podcasts, courts have dealt with many specific legal issues and concerns related to content, including copyright or trademark infringement, defamation, invasion of privacy, or infringement on a person’s right of privacy. Given the rate of adoption of blogs and podcasts, it is incumbent on the legal community to understand and address these issues.

L egal challenges presented by blogs/podcasts. Bloggers and podcasters who create original content in their postings can obtain copyright protection in such original work. They also make use of previously existing information, which implicates copyright rights of third parties. Copyright clearance and appropriate attribution of sources are important elements of avoiding legal difficulties. Information, although readily available on the Internet or accessible in digital format, is still protected under federal and state copyright law. The unauthorized posting or dissemination may violate a third party’s right to reproduce, prepare derivative works, distribute copies, perform, display, or, in the case of sound recordings, perform the work through audio transmission. Unauthorized copying, incorporation, or adaptation of third-party information can be a crucial concern for bloggers, particularly where a blog permits third-party posting or comments. In addition to any text or related material, podcasting often requires special attention to clearing or obtaining a license to use music as part of the podcast.

Even where the blogger or podcaster has exercised due diligence in clearing any copyright issues, such actions may raise claims of copyright infringement, even in cases where the party creating or hosting the blog did not post such information, on the basis of direct, vicarious, or contributory infringement. Although there is the potential to limit liability for contributory or vicarious infringement under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), one recent case held that no liability attaches for “online service providers” where the content is created by a third party (other than the blogger or podcaster) and intended for publication. However, a key provision of the DMCA requires that defendants register their websites with the U.S. Copyright Office. Failure to register may preclude the availability of “safe harbor” provisions for bloggers or podcasters.

In addition to copyright infringement concerns, the unauthorized use of trademarks in blogs and podcasts may subject bloggers and podcasters to claims of trademark infringement, dilution, and unfair competition. Trademark law is designed to act as a source identifier, and false designations of sponsorship or affiliation or misuse of a trademark in a blog or podcast may be actionable under federal as well as state law. Use of a trademark or service mark by a blogger or podcaster without authorization or for a purpose that is not otherwise permitted may give rise to trademark infringement, dilution, or unfair competition claims by the trademark owner. Although disclaimers may help avoid trademark infringement claims, it is important to be aware that trademarks should be used in an informative, rather than commercial, sense.

Blogs and website postings may also give rise to defamation, invasion of privacy, or claims arising from the public disclosure of private facts. Although differing from state to state, a defamation claim may generally be made where a blogger makes a false or defamatory statement concerning another in an unprivileged publication to a third party; if the defamatory matter is of public concern, fault amounts at least to negligence on the part of the publisher and damage to the plaintiff. Although a blogger may assert that the statements made are protected under the First Amendment or were merely an expression or statement of opinion, this will not always insulate the blogger from liability. Even anonymous postings may not insulate bloggers from liability for defamation claims. In addition to direct liability for posts, bloggers may be held liable for third-party content posted on a blog under certain circumstances, based primarily on the level of activity in editing or moderating a blog; however, under federal law, third-party liability may be preempted. Even so, under certain circumstances, discussion groups or website moderators can be immune from liability for messages posted to their group or website, under the safe harbor provisions of the Communications Decency Act of 1996.

Lawyer advertising through blogs or podcasts. Blogs and podcasts can be valuable marketing tools for attorneys, offering another means to provide information to existing and potential clients. Interactive informational newsletters, industry updates and discussions, and con-tinuing legal education topics and broadcasts are just a few of the ways that lawyers are using blogs and podcasts.

In addition to the concerns regarding copyright, defamation, and invasion of privacy, lawyer advertising and marketing is regulated by ethical canons, the Rules of Professional Conduct, or Rules of Judicial Conduct. These canons and rules are based on the American Bar Association Model Rules of Professional Conduct (Model Rules), which have been adopted in some form by each state. Further, lawyer advertising is governed by Model Rule 7.2, which states, in part, “a lawyer may advertise services through written, recorded or electronic communication, including public media.” Lawyer advertising must not contain any false or misleading communications and must conform to certain content requirements and disclosures. Model Rule 7.3(c) provides that “every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words ‘Advertising Material’ on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).”

In addition to oversight by the ABA and state bar associations, the Federal Trade Commission regulates advertising, and each state may have its own rules and regulations on advertising. The overall goal is to protect the public by ensuring that lawyers do not disseminate false or misleading information.

practices in the area of intellectual property and technology law at Polsinelli Shalton Welte Suelthaus PC.

Copyright 2007

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This article is an abridged and edited version of one that originally appeared on page 20 of The SciTech Lawyer, Winter 2007 (3:3). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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