Who Owns Blog Comments?
It's a harder question than you think
Here's a head-scratcher with a deceptively obvious answer: When a person comments on a blog or website, who owns, or owns the rights to, that comment? Is it the commenter or the blog/website publisher? It's a trickier question than you might think.
The intuitive answer, an opinion shared by some prominent bloggers, is that once a commenter comments, they submit the comment with the knowledge they've lost control of that comment forever. Of course, there's more than one way to look at it, but there is also more than one platform (or publishing model) to consider, and at least a couple of legal aspects to explore.
A newspaper or magazine editor, for example, elects to publish response letters from readers. Not all responses are published, and thanks to some legal language, letter-writers are often informed they lose, to some extent, ownership of those letters.
In a sense, blog comments are similar. A blogger can elect not to publish a comment at all, or she can edit or delete a comment for various reasons. But there are stark differences, too. Most of the time, there is no written agreement about comments as there is with submitted letters. Another difference: Once a print publication publishes, the content can't be unpublished. Along some (strong) lines of logic, though this hasn't been fully tested in the legal system, this sense of permanency subjects print publishers to greater liability than digital publishers.
That, and the Communications Decency Act (so far) has protected bloggers from being liable for third party comments. Though they've tried, lawyers have had a tough time in court going after bloggers for something a commenter said. They have had more success in going after the commenter, if they can force identifying information from the blog host. This commenter liability would suggest a definite ownership of comments.
However, it could be argued also that a commenter no more owns his comment than a person quoted in an article "owns" his quote. (Quotation ownership, though, is perhaps a different animal altogether, and one that walks lines of ethics—or even attribution etiquette—more than legal ones.)
The idea of comment ownership reached the foreground last week in the form of a blogger spat between famed blogger Robert Scoble and Texas-based consultant and blogger Rob La Gesse. An argument that may have been unlikely a year or two ago came about because of microblogging/Web-conversation platform FriendFeed.
La Gesse, upon discovering his membership with FriendFeed meant Scoble's comments were transferred from his blog to a new location on FriendFeed where a new conversation could begin, deleted his FriendFeed account in order to keep the conversation closer to home. Upon doing so, Scoble's comments disappeared from FriendFeed altogether, a consequence La Gesse appears not to have intended. Scoble, offended by the deletion, protested by claiming he owned his comments and La Gesse didn't have the right to delete them from FriendFeed.
Though this case appears to be an issue with FriendFeed's user interface rather than La Gesse's defacto censorship, Scoble presented an entirely new debate about comment ownership. This prompted A-listers and new blogging platform pundits alike to weigh in.
Self-described original blogger Dave Winer decided both parties own the comments. "I decided that it's a mutual thing. I own the collection of comments on my blog, and you own the comments you've placed on my blog and all others. I should be able to back up a complete set of comments on my blog, and also back up a copy of all comments I've placed on all blogs."
Daniel Ha, founder of Disqus, a web platform that stores blog comments and allows commenters to edit, save, and collect their comments on personal websites for their own use, concurs with the mutual ownership angle. Ha writes, "Comments are, in some way, the currency in which bloggers are paid for their posts. Bloggers want to encourage active discussions on their site. A way to encourage discussion is to give the participants more control of their contributions."
You'd be right to note his business model depends on participants having more control of their contributions. Nevertheless, Ha penned a commenter's bill of rights, which includes the right to edit, remove, access, reuse, and transfer their comments, even in the event a blog ceases to exist. Ha's Commenter's Bill of Rights, obviously, are more of a proposal than legal mandate, and the issue of all those commenter-owned comments being stored on Disqus servers enters into the same pitfalls Google faces with its immense databases of content—again, a whole other branch of the conversation.
In light of all the uncertainty, WebProNews sought some legal advice about this issue from a legal scholar at one of the nation's cutting edge law schools. Tyler T. Ochoa, law professor at Santa Clara University School of Law's High Technology Law Institute, rests on both the rights of the commenter and the rights of the blogger before posing a third, more difficult question.
From Ochoa's viewpoint, a commenter owns his comments for copyright purposes. This means that if a blogger wanted to publish a best-of collection of comments, as Winer suggested, the blogger would likely need permission from the commenter. But just like a magazine or newspaper doesn't have to publish letters, a blogger doesn't have to publish comments. As far as the "right to withdraw or depublish" comments, Ochoa says this may be a more difficult matter for the blogger under European law than US law. In the US, absent of Europe's notion of "moral rights," without some kind of contractual agreement between blogger and commenter, the blogger can pretty much do what he wants with comments on his blog despite not having actual ownership.
"An interesting question might be whether, by posting the submission to begin with, the blogger has 'agreed' to distribute it, such that the blogger has a continuing obligation to continue to display it," said Ochoa. Ochoa doubts this is the case, however, without some kind of written contract.
It's a complicated issue, for sure, and one that probably won't be solved in the immediate future.
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