Pop quiz: Barring any prior agreement, who own the copyright to the comments on your blog, forum or site?
If you answered the original poster, you’d be correct. However, you’d also have pointed out one of the unique problems that comes with allowing comments, guest bloggers or forum users to take advantage of your site: It is content you do not own.
This comes with a series of legal problems that are unique to this particular genre and field of use. Problems that even copyright law itself fails to adequately address.
Copyright law is pretty clear about what it protects: “original works of authorship fixed in any tangible medium of expression”. There is also very little doubt that posting one’s writing to as a comment to a blog entry or a posting on a forum constitutes such a fixation.
Furthermore, since copyright can not be transferred without “an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights” the copyrights of that posting revert back to the original author, the poster.
This puts the owner of the blog or forum in a strange position. Though his site and his entries are a work of original authorship, the comments posted to his or her works are owned by someone else. This attaches a great deal of limitation to what one can and can not do with them.
While one is free to compile their blog entries into a book, including the comments would be a likely copyright infringement. Similarly, replicating an entire site at another location, syndicating the entire site to outside sources and any other unauthorized duplication of the comment is a potential violation.
However, the knife potentially cuts even deeper than that. Since you don’t own the copyright to the piece, there is no guarantee that you can use the work at all, even in the manner it was intended. Though it might seem odd that a commenter might object to the piece he submitted appearing on on your forum or blog, the place he submitted it too, it has happened and with tragic results.
Fortunately, there is an element of the law that protects blog and forum owners alike from disgruntled commenters. However, its application is severely limited.
The Implied License
An implied license is simply a license that is created by law in the absence of an actual agreement. It arises when the conduct of a copyright holder indicates that he intends for some kind of license to be extended to the licensee but no formal agreement exists.
Without implied licenses, the Web would not be able to function. Whenever a user visits a site, a copy of the page is stored, at least temporarily, on the user’s computer. This copy is created without the express approval of the copyright holder and, theoretically, could be a violation of his or her copyright. However, courts have held that, by posting their works on the Web in a public place, that copyright holders are giving viewers an implied license to do exactly that.
Similarly, most agree that, when dealing with comments and forum posts, that there is an implied license to allow the site to display the work. Without such a license, comment posting would be completely useless.
However, the actual extent of this implied license has yet to be tested in the courts. Thus, there is no way to know exactly how far it goes. What if a comment is posted on a non-commercial blog but is later turned into a for-profit venture? What happens if the blog is sold to a new owner? Is this license indefinite? What, if anything, can the original author do to end the license?
These are all questions that are, for the most part, unanswered. While courts would look to typical industry practices to sort these matters out, how exactly one would rule remains very much open to debate.
Still, there are a few elements which are worth noting:
First, most implied licenses do have a means of termination. With the caching example, one can either add HTML code to prohibit caching, including by the search engines, or simply remove the site. It seems unlikely that any implied license involving comments would be indefinite and the fact that the owner can not physically remove the copyrighted work himself would not change that.
Second, and most importantly, an implied license only goes as far as what one would have been allowed had the parties entered into a formal agreement. While courts look to industry standards in regards to this, there is very little in terms of formal contracts on these matters to be found. Furthermore, courts do tend to err on the side of caution, only granting the rights which are absolutely necessary for the intended use to function properly.
The bottom line is that blog owners should not and can not rely on this implied license when dealing with comments. At best it is risky, at worst it is a disaster waiting to happen.
What to Do
With all of that in mind, the challenge becomes figuring out what to do in order to keep these potential problems at bay.
The simplest solution is obvious, shut down forums and close off comments. However, that completely defeats the exchange of ideas, one of the critical elements of blogging.
The more practical solution is to simply get things in writing. Since courts have upheld “clickwrap” licenses and electronic signatures hold the same validity as physical ones for most purposes, it can be very easy to implement such a license into your site.
The easiest way to do that is to simply require your commenters place their submissions under a Creative Commons License that allows your site to use them. However, you could also craft your own agreement or use a stock non-exclusive copyright agreement. However, for most purposes, a Creative Commons License is more than adequate and, given the familiarity most bloggers have with the CC organization, it greatly streamlines the process by reducing the amount of legalese and general anxiety about signing onto the agreement.
In lieu of such a policy, a blog needs to have a policy in place by which they can remove posts and comments from guests. Should a guest change his or her mind about their work appearing on their site, it is likely in the best interest of all involved just to remove the work. Odds are that it is the commenter’s right to make such a request, especially if a change in the blog that could not be foreseen at the time of the post prompted the request, and complying not only avoids a great deal of potential legal trouble, but also a fair amount of unneeded drama.
Generally, such a policy only becomes a hazard in situations where the guest has become a major part of the site, such as a guest blogger that creates a large percentage of the posts. In situations such as that, a written contract is absolutely critical. Though such a contract needn’t have the guest sign over all rights to the work, it certainly should allow the host to continue using the work, even if the relationship sours.
Such contracts are very common in non-blogging arenas and should be a natural fit in such partnerships, even if it is not the type of thing friends and fellow bloggers like to discuss.
In the end, much of the issue stems from not wanting to address or deal with copyright issues in advance. Generally, most people online don’t think about such issues until something goes horribly wrong. However, it is a classic situation where an ounce of prevention is worth a pound of cure. Thinking and acting in advance requires a great deal less effort than trying to fix things after they break.
That’s why it’s worth taking a few moments right now to ponder these issues and develop a strategy for handling them. Personally, I’ve modified my comment box here on PT to require commenters to license their work under an appropriate CC license, I’ve used a similar method on my other sites for some time.
No matter what though, it is important to be aware of the potential problems and pitfalls that come with accepting comments and forum posts. Even if one doesn’t take any action to head off such situations, being aware of the possibility for problems and understanding what the rights and issues involved are can help greatly.
In many ways, knowledge really is power.