Legal Consequences of Co-Blogging, Part 1

Date: Feb 15, 2008

The decision to blog collaboratively can have significant legal consequences for the co-bloggers. In part 1 of a two-part series, Eric Goldman examines how current legal doctrines relevant to co-blogging can lead to unexpected (and possibly unwanted) results.

Bloggers often work collaboratively with other bloggers, a phenomenon I call "co-blogging." The decision to co-blog may seem casual, but it can have significant and unexpected legal consequences for the co-bloggers. This series looks at some of these consequences under partnership law, employment law, and copyright law, explaining how each of these legal doctrines can lead to counterintuitive results. Part 2 of this series discusses some recommendations to mitigate the harshness of these results.

Introduction

Beginning a blog seems tantalizingly easy. Google’s Blogger service invites users to create a blog [1] in three easy steps:

Create an account.
Name your blog.
Choose a template.

This solicitation suggests that the decision to blog can be made casually, but it’s hardly a trivial decision. The adverse consequences of blogging can be severe, ranging from being fired [2] to being sued, and bloggers—and the service providers catering to them—rarely discuss these risks. [3] Therefore, a new blogger can start a blog without contemplating these consequences.

A blogger can work solo, with other bloggers in a joint or group blog, or as a "guest" at someone else’s blog. All these various types of collaborative blogging activities are "co-blogging." As with the initial decision to blog, many bloggers form co-blogging relationships casually, without considering the legal implications. [4]

The law inevitably will blindside some of these co-bloggers. Bloggers may experience unexpected liability for their co-bloggers’ posts or actions. Co-bloggers may decide to separate, and only then find that default legal principles allocate the bloggers’ rights and responsibilities in counterintuitive ways.

Let’s examine the law of co-blogging and some of the unexpected consequences of that law. In part 2 of this series, I’ll make some recommendations to mitigate the harshest consequences, but I can’t really identify or propose any great solutions. Blogger blindsiding can be avoided only by readjusting bloggers’ expectations so that they better appreciate the significance of their decisions. Well-publicized legal incidents have this effect, but at significant personal cost for the subject bloggers. Perhaps this article can help you to avoid being an unlucky test case.

What Is Blogging?

The term "blog" lacks a single well-accepted definition. Blogs are one of many ways to publish content over the Internet, along with other publication methods such as message boards, chat, email lists, USENET groups, and websites. There are no bright-line distinctions between these publication methods. However, to the extent to which blogs are a discrete Internet publication medium, blogs typically adhere to the following three conventions:

Reverse chronological presentation. Blog posts almost always are presented in reverse chronological order (with the latest posts on top). [5]
Self-edited. Typically, a blogger publishes content without third-party review or editing.
RSS feeds. Most blogs offer an RSS feed [6] that notifies readers of new content upon publication.

In addition, blogs often have the following attributes:

Multiple navigational structures. In addition to chronological navigation, blogs may structure their posts into additional taxonomical structures (by subject matter, author, and so on).
Personal observations. Bloggers often post their personal perspectives and commentary.
Interlinking. Blogs routinely link extensively to other blogs in substantive blog posts and via a "blogroll." [7]

While bloggers follow many norms and conventions, [8] none of them are immutable—except, perhaps, the reverse chronological presentation of new posts. This fluidity means that any discussion about blogs—including this one—typically applies to other types of Internet publications as well.

Bloggers can work together in a variety of ways. A "guest blogger" typically is given the right to publish content via the blog for a fixed period of time. Guest bloggers typically don’t get administrative power over the blog’s operation. In "joint blogs" or "group blogs," two or more bloggers publish content via the blog on an ongoing basis. Sometimes a subset of bloggers have principal responsibility for the blog’s administration; in other cases, all bloggers share administrative rights.

I regard both guest blogging and joint/group blogging as "co-blogging."

Legal Characterizations of Co-Blogging

Co-blogging arrangements may fit within one of four principal legal doctrines, as shown in the following table.

Relationship	Liability	Asset Ownership
Partnership	Partners personally liable for acts of other partners	Assets and liabilities divided among all partners on dissolution
Employment	Employer vicariously liable for employee’s acts within employment scope	Employer automatically owns all copyrights created by employee within employment scope
Joint authors	N/A	Parties co-own copyrights, subject to accounting duty
Independent contractors	Generally no liability for other bloggers’ activities	Each party owns assets he or she creates

Let’s look at some of the details of how the law regards these various arrangements.

Partnership

A general partnership is "an association of two or more persons to carry on as co-owners of a business for profit" [9] and can be formed expressly or impliedly. General partners may be personally liable for partnership obligations, including the acts of other partners in furtherance of the partnership. [10] Upon the partnership’s dissolution, partnership assets and liabilities are divided among all partners.

Many blogs don’t generate revenues of any kind and therefore may not qualify as a "business for profit." In these situations, it’s unlikely that co-bloggers would be characterized as "partners" in an implied "general partnership."

In contrast, if a blog generates revenues—such as through advertising—it’s very possible that joint or group bloggers (in the absence of some other agreement or arrangement) will be deemed to be in an implied general partnership. [11] However, guest bloggers may not be deemed partners of that partnership because they may lack the requisite intent or permanence to be "carrying on" together.

Employment

Bloggers could be in an employment relationship. In general, an employment relationship exists when the hiring party has the "right to control the manner and means by which the product is accomplished," [12] determined via multifactor tests that differ based on the applicable legal regulation. The Internal Revenue Service, for example, uses a 20-factor test to determine employment for tax purposes. [13]

An employment relationship might exist when a co-blogger or a group of co-bloggers has principal responsibility for the blog’s operations (thus constituting the "employer") and other co-bloggers are asked to perform specific tasks (thus becoming the "employees"). Depending on the facts, guest bloggers also could be employees.

In an employment relationship, the employer is vicariously liable for the employee’s acts within the scope of employment. Employers also can be liable for employees’ acts under other doctrines, such as the negligent supervision doctrine. The employer would automatically own all copyrights created by the employee within the scope of employment. [14] Among other duties, a blogger-employer could be required to pay minimum wages to the blogger-employees, withhold taxes and issue W-2 forms, and pay unemployment insurance.

Joint Works

Copyright law defines a "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." [15] In rare cases, each individual blog post is an interdependent component of the whole blog. In that case, the blog and all individual posts may be a "joint work," and the bloggers would be coauthors of that joint work.

In most cases, however, blog posts are neither inseparable nor interdependent. As a result, blogs are more likely to be characterized as "collective works" [16] rather than "joint works." [17]

If bloggers are deemed authors of a joint work, the bloggers co-own the work [18] and have a duty to account to their co-owners for any proceeds from the work. [19] Joint-work status should not affect a blogger’s liability for other bloggers’ postings or actions.

Independent Contractors

If co-bloggers don’t fit into the prior three categories, they’re probably independent contractors. In that case, they retain ownership of any assets they create, and ordinarily (subject to numerous exclusions) they’re not liable for each other’s acts.

Liability Consequences of Co-Blogging

Co-bloggers are exposed to liability for copyright infringement, trade secret misappropriation, and a variety of other claims putatively covered by 47 U.S.C. Section 230. Let’s consider each of these important issues separately.

Copyright Infringement

A blogger who publishes copyright-infringing content via a blog may be directly liable for infringement. The fact that the medium is a blog doesn’t affect the infringement analysis. In addition to the blogger’s direct liability, any co-bloggers who are partners or employers of the infringing blogger are also automatically liable for that infringement.

However, even co-bloggers who are independent contractors or employees may face contributory or vicarious liability for a blogger’s infringement:

Contributory liability occurs when the defendant, "with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another," [20].
Vicarious liability occurs when the defendant "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." [21]

The precise contours of contributory and vicarious copyright infringement for online activities are subtle and dynamically changing, so they’re beyond the scope of this brief discussion. [22] Generally, bloggers face a nontrivial threat of copyright infringement for their co-bloggers’ activities. Bloggers often work closely together and share administrative responsibilities, which may translate—when legally scrutinized—into the requisite level of knowledge of or control over their co-bloggers’ posts.

In theory, 17 U.S.C. Section 512 might mitigate some of this risk. Congress enacted Section 512 to give online service providers some relief from copyright liability committed by third parties. Section 512 could apply when a blogger acts as a service provider for the publication of third-party content, such as comments posted by blog readers or even guest blogger contributions. If Section 512 applies, the safe harbor would limit the blogger’s liability. Thus, Section 512 could be the cornerstone of a blogger’s defense against copyright infringement claims for third-party posts.

However, in practice, Section 512 won’t help in most co-blogger infringement lawsuits, for several reasons:

It’s unclear when a blogger might qualify as a "service provider" to co-bloggers. Section 512 defines "service provider" broadly, [23] so the statute could cover bloggers. However, based on their cooperative interaction, co-bloggers may not be legally independent enough for one blogger to be deemed the "service provider" of another co-blogger. [24] Thus, co-bloggers may act as "service providers" to third parties, but not to each other.
The case law interpreting the Section 512 safe harbor is mixed. Some cases interpret the safe harbor fairly narrowly. [25]As a result, the safe harbor has proven less useful than defendants initially hoped. [26]
Few blogs satisfy the numerous technical prerequisites for Section 512 eligibility, such as registering their websites with the U.S. Copyright Office. [27] To assess this issue, I searched the Copyright Office’s database of Section 512 registrations on April 18, 2006 [28] and found only 10 registrations containing the word "blog." [29] Admittedly, this search is neither rigorous nor exhaustive, [30] but it does reinforce the possibility that a trivial percentage of blogs qualify for the Section 512 safe harbor. [31]

Without the Section 512 safe harbor, and given sometimes expansive applications of contributory and vicarious copyright infringement, bloggers appear to face significant copyright infringement exposure from co-blogging.

Misappropriated Trade Secrets

A blogger who publishes a third-party trade secret via the blog may be liable for trade secret misappropriation. Partners or employers of the misappropriating blogger could be vicariously liable if the misappropriation occurred in the scope of the partnership or employment. In other circumstances, the co-blogger liability analysis is indeterminate. To my knowledge, no published cases have addressed a website operator’s liability when a third party posts misappropriated trade secrets to the website. [32] At minimum, I think that co-bloggers won’t face such liability without some scienter about the misappropriation. [33] It’s also possible that such liability is preempted by 47 U.S.C. Section 230. [34]

Other Claims

Except with respect to copyright infringement and possibly trade secret misappropriation claims, a co-blogger’s liability for almost all other tortious content published by another co-blogger putatively is covered by 47 U.S.C. Section 230. Under Section 230, a party generally is not liable for tortious content posted by someone else [35] other than claims based on intellectual property, federal criminal law, or the Electronic Communications Privacy Act (ECPA). [36]

Section 230 is an exceptionally powerful defense. For example, if a guest blogger publishes a defamatory blog post, Section 230 should absolutely insulate all co-bloggers from defamation liability—regardless of the co-bloggers’ scienter, [37] editorial role, [38] or financial benefit from the publication. [39] Further, Section 230 typically ends the lawsuit on a motion to dismiss, making these lawsuits comparatively cheap and quick to defend.

Clearly, bloggers will want Section 230 immunization for their co-bloggers’ activities. However, there may be situations in which a co-blogger might not be able to claim Section 230. Section 230 applies only when "another information content provider" provides the tortious content. Even if a blogger edits or obtains ownership of a third party’s content, the content still will be provided by another information content provider, so long as the third party had any responsibility for developing the content. [40] However, if a blogger employs the co-blogger who publishes the tortious content, the blogger-employer may be deemed to be the information content provider. [41] The same result probably occurs with publications by partners in a blogging partnership; in that case, the partnership may be deemed the information content provider.

Thus, Section 230 may not insulate tortious publications by employees and partners. We would expect that plaintiffs will allege that co-bloggers are partners or employers, to avoid the otherwise terminal effect of Section 230 on their lawsuits. At a minimum, these allegations may allow the lawsuit to survive a motion to dismiss. As a result, depending on the nature of the co-blogging relationship, the potential loss of the Section 230 defense exposes bloggers to significant, unexpected liability.

Ownership Effects of Co-Blogging

Now that we’ve examined the possible legal liabilities faced by co-bloggers, let’s look at the implications for ownership.

Copyright

Bloggers typically produce a variety of copyrightable works. A blog’s core assets are its individual postings, which are copyrightable so long as they are "original works of authorship." [42] The standard for originality is low, [43] so most individual blog posts should qualify for copyright protection. The rare exceptions may include blog posts that contain only trivial original expression, such as a one-sentence blog post with a third-party link, or republication of someone else’s content.

A blog may generate other copyrightable material in addition to individual posts, including the entire collection of blog posts and reader comments, which may be a collective work; the blog’s organizational structure (its "taxonomy"); [44] and the blog’s "look and feel," which also may be protectable as trade dress or a trademark.

Initially, copyright ownership of all blog-associated copyrightable material rests with the author. [45] Presumptively, then, a blogger owns each item of content he or she authored—such as individual blog posts—and can decide to withdraw his or her content from subsequent publication. For example, if co-bloggers separate, default rules should permit the departing blogger to extract his or her posts from the blog’s database of posts—effectively blocking continued publication of the blog in toto.

However, a blogger’s default "blocking" rights don’t apply in a number of circumstances:

The parties may expressly agree to a copyright license or an assignment of copyright ownership. [46] Alternatively, a court may find an implied license permitting the blog to continue republishing the content.
A co-blogger could claim that the blog was a collective work and that each blog post was a contribution to the collective work. In that case, the co-blogger could continue to publish a departing co-blogger’s content as part of the blog or a revision to that blog. [47]
If a blogger was an employee and was blogging in the course of the employment, the employer-blogger would automatically own the employee-blogger’s copyrights when created. In this case, the employer-blogger can continue publishing the content without restriction upon the employee-blogger’s departure. Indeed, because ownership transfer occurs automatically, the employee-blogger would not retain the rights to republish the content elsewhere.
The bloggers could be deemed joint copyright owners if (a) their work is deemed a joint work, or (b) the bloggers are in a general partnership and their work is deemed partnership property. [48] In either case, the parties would jointly and equally own the content, even if they didn’t contribute equally to the work’s creation. [49] Each blogger would have a nonexclusive right to publish jointly owned works—and to allow others to do so—even after termination of the co-blogging arrangement, subject to an obligation to account for any revenues the blogger generates from the work’s continuing use.

This discussion illustrates that bloggers face several unexpected copyright ownership traps. For example, bloggers might assume that they have complete control over their postings, but this control may be circumscribed when bloggers are employees or contribute to a collective work. If a blogger is deemed an employee, the blogger retains no copyright interests at all.

Domain Names and Trademarks

A blog’s name, domain name, and logo may be protected by trademark law [50] if they (a) are used in commerce in connection with the sale of goods and services, and (b) are distinctive—or, if descriptive, acquire enough recognition that the name or logo is uniquely associated with the blog (in other words, derive "secondary meaning").

Whether a word or symbol may be protected as a trademark is a fact-specific inquiry, but two general observations are appropriate:

Blogs that generate revenue presumptively should satisfy the "use in commerce" standard. [51] The converse proposition—no revenue, no use in commerce—may hold true as well. [52]
Blog names are often descriptive [53] and thus cannot be protected as trademarks until they achieve secondary meaning. Based on the foregoing principles, some popular blog names and domain names may not be protected as a trademark yet—or ever.

When they split up, it’s almost inevitable that bloggers will fight over the blog’s domain name and trademarks, for several predictable reasons:

People become emotionally attached to brands.
In some cases, a blog’s brand becomes an extension of the blogger’s identity. Indeed, in some cases, the blog’s brand may be more widely known than the names of the blog’s individual contributors.
The blog’s domain name may have significant and immediately recognizable value [54] due to its ongoing monetizable traffic, both from existing readers and from search engine referrals. [55]

If bloggers have been using the blog name or domain name in commerce (such that the names may qualify for trademark protection), the associated commercial activity may support the imposition of an implied general partnership. In that case, the trademarks and domain name will be allocated according to standard partnership-dissolution procedures. If some blogger-partners want to keep using the trademarks, they may be required to buy out the interests of departing bloggers.

Alternatively, if the bloggers are in an employment relationship, the employer would own all rights to the domain name and trademarks, and a departing blogger-employee wouldn’t have any rights in either.

If bloggers haven’t used the domain name, blog name, or logos in commerce, these assets won’t be deemed trademarks, and the parties probably won’t have an implied general partnership such that the partnership allocation procedures apply. As a result, it’s unclear what legal doctrines will be used to resolve any disputes over these assets. [56] Fortunately, litigation over such domain names, blog names, or logos should be relatively rare; this would occur only when bloggers haven’t commercialized these assets, yet still think that they are valuable enough to litigate.

Advertising Revenue

Revenue-generating blogs may have accumulated cash or accounts receivable. If co-bloggers are partners, they’re entitled to equal shares of these proceeds after liabilities are settled. Alternatively, co-bloggers who are employees or independent contractors of an employer-blogger will not be entitled to any share of the proceeds.

Summary

We’ve examined some of the possible legal ramifications of blogging collaboratively, but you still may want (or need) to blog with a partner. How can you avoid some of the legal wrangling I’ve discussed so far? In part 2 of this series, I point out some possible solutions and recommendations for mitigating unwanted consequences of co-blogging.

References

[1] Blogger.

[2] See, for example, Krysten Crawford, "Have a Blog, Lose Your Job?" CNNMoney.com (February 15, 2005), discussing famous fired bloggers like Mark Jen and Ellen Simonetti.

[3] See Elise Ackerman, "Negative Postings May Spur Lawsuit," San Jose Mercury News (July 16, 2006), noting how websites generating user content rarely mention the associated legal risks.

[4] See posting of Bill Sjostrom to Truth on the Market, "Group Blog Agreement," (January 21, 2006, 10:27 EST), discussing how law professors launched a group blog without talking about the legal issues.

[5] See Orin S. Kerr, "Blogs and the Legal Academy," 84 Wash. U. L. Rev. 1127 (2006).

[6] RSS is a technical protocol for websites to communicate information to subscribers who voluntarily opt to monitor the protocol.

[7] A blogroll is a "list of links to other blogs or websites that the author of the blog regularly likes to read," blogossary.

[8] See generally Larry E. Ribstein, "From Bricks to Pajamas: The Law and Economics of Amateur Journalism," 48 Wm. & Mary L. Rev. 185 (2006).

[9] Uniform Partnership Act § 202(a) (1997).

[10] See Ribstein, supra note 8, at 233–36.

[11] See id.; posting from Stephen Bainbridge to ProfessorBainbridge.com, "Are Group Blogs Partnerships?" (February 14, 2005).

[12] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752 (1989).

[13] See Rev. Rul. 87–41, 1987-1 C.B. 296.

[14] 17 U.S.C.A. § 201(b) (2001).

[15] 17 U.S.C.A. § 101 (2001).

[16] "A ’collective work’ is a work...in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." 17 U.S.C. § 101.

[17] See the discussion of the consequences of a collective-work characterization, in the section "Liability Consequences of the Legal Characterization."

[18] 17 U.S.C. § 201(a).

[19] See 1 Melville Nimmer & David Nimmer, Nimmer on Copyright § 6.12[A] (2006).

[20] Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).

[21] Id.

[22] Interested readers may wish to review my list of derivative online copyright infringement cases.

[23] "[T]he term ’service provider’ means a provider of online services." 17 U.S.C. § 512(k)(1)(B). Service providers include web hosts that permit third parties to submit content. See, for example, Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001).

[24] See the analogous discussion in the section "Liability Consequences of the Legal Characterization" with respect to 47 U.S.C. § 230.

[25] See, for example, ALS Scan v. RemarQ Communities., 239 F.3d 619 (4th Cir. 2001), effectively eviscerating the statutory notification scheme with a flexible interpretation of the notification requirements; Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002). (§ 512 doesn’t apply to vicarious copyright infringement claims.)

[26] See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005). The Grokster Supreme Court opinion, for example, doesn’t reference 17 U.S.C. § 512 at all. Id.

[27] See 17 U.S.C. § 512(c)(2).

[28] Directory of Service Provider Agents for Notification of Claims of Infringement.

[29] The 10 registrations are anablog.com; blogabout.com; blogabout.net; Blogbox.com; BROADWAYBLOGS, LLC; freeblogging.com; hasablog.com; Pill Blog (pillblog.com); Socially Blog, Inc.; and SpongeBlogger.com. Of those registrations, seven appear to cover inactive websites (anablog.com; blogabout.com; blogabout.net; BROADWAYBLOGS, LLC; freeblogging.com; and hasablog.com). Only Pill Blog, one of Socially Blog’s properties (Dave’s Daily), and SpongeBlogger.com look like "traditional" blogs. Of those, two appear dormant: Pill Blog’s last posting was October 2005, and SpongeBlogger.com’s last posting was November 2004.

On July 22, 2006, I also searched the database for the term "blawg." I found one additional site, Blawg Republic, a blog aggregator operated by the same company that operated Pill Blog.

[30] For example, the search did not pick up any blog that did not register with the word "blog" in its title. Note, however, that the registration form prompts registrants to enumerate all names and URLs they wish to cover under the § 512 safe harbor. As such, most prudent registrants will register URLs, blog names, and (if applicable) corporate names.

[31] Readers may find it relevant that I haven’t registered my own blogs for the § 512 safe harbor. My Goldman’s Observations blog is a solo blog, and my Technology & Marketing Law Blog has only infrequent guest postings. Therefore, I’ve decided that my likely personal benefit from § 512 is low.

[32] A blogger has been sued for trade secret misappropriation based on user-submitted comments to the blog. See Software Dev. & Inv. of Nev. v. Wall, No. 2:05-cv-01109-RLH-LRL (D. Nev. 2006). On February 13, 2006, this lawsuit was dismissed for lack of jurisdiction, and it appears (based on a review of PACER on November 3, 2006) that the plaintiff has not re-filed the case.

[33] Scienter is required to misappropriate a trade secret. The Uniform Trade Secret Act defines "misappropriation" as (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who had utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Uniform Trade Secret Act § 1(2) (1989) (emphasis added).

[34] See Perfect 10 v. CCBill LLC, 481 F.3d 751 (9th Cir. 2007), all state intellectual property claims based on third party content may be preempted.

[35] Specifically, the statute says: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

[36] See 47 U.S.C. § 230(e). Because of their relatively low applicability, this article doesn’t analyze some possible derivative claims excluded from § 230, including trademark or patent infringement, obscenity/child pornography, and ECPA claims.

[37] So long as a third party published the content, § 230 applies even if the co-blogger was negligent. See Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). Indeed, § 230 should apply even if the co-blogger intended for the tortious content to be published.

[38] Section 230 applies even if the defendant edited or modified the published content. See, for example, Ramey v. Darkside Products, Inc., 2004 U.S. Dist. LEXIS 10107 (D.D.C. 2004); Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash. Ct. App. 2001).

[39] Section 230 applies even if the defendant syndicated the content for profit. See Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. March 30, 2006).

[40] See 47 U.S.C. § 230(f)(3), defining "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service") (emphasis added); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003); Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. App. Div. 2005); Fair Hous. Council of San Fernando Valley v. Roommate.com, 2004 U.S. Dist. LEXIS 27987 (C.D. Cal. September 30, 2004); Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. March 30, 2006).

[41] But see Delfino v. Agilent Techs., Inc., 2006 WL 3635399 (Cal. App. Ct. December 14, 2006), employer can claim § 230 defense for employee’s online acts outside employment scope.

[42] 17 U.S.C.A. § 102(a) (2001). The statute also requires fixation in a tangible medium of expression, but all web-published content, by definition, meets this standard. Id. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).

[43] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

[44] See Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977 (7th Cir. 1997), finding that a taxonomy was copyrightable.

[45] See 17 U.S.C. § 201(a).

[46] Even so, the author will retain a non-waivable right to terminate that license or assignment 35–40 years after the transfer. 17 U.S.C. § 203.

[47] See 17 U.S.C. § 201(c); N.Y. Times Co. v. Tasini, 533 U.S. 483 (2001), discussing the applicability of the § 201(c) privilege to electronic republication of content.

[48] See Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984) "[W]e see no reason why partners should be excluded from the general rules governing copyright ownership...."

[49] See 1 Nimmer & Nimmer, supra note 19, § 6.08.

[50] These assets may qualify for other protections as well. For example, even if the domain name cannot be protected as a trademark, it may still qualify for protection under the Anti-Cybersquatting Consumer Protection Act [codified at 15 U.S.C. § 1125(d) (1995) and 15 U.S.C. § 1129 (1995)] or some state laws [such as California’s anti-phishing law, codified at Cal. Bus. & Prof. Code § 22948.2 (1997 & Supp. 2006)].

[51] "Use in commerce" means "the bona fide use of a mark in the ordinary course of trade," 15 U.S.C. § 1127 (emphasis added).

[52] Although this makes intuitive sense—trademark law, after all, protects consumers, and a non-commercial endeavor has no consumers to protect—it bears noting that the meaning of "use in commerce" is particularly confused in Internet jurisprudence, and there are some cases (wrongly decided, in my view) where non-revenue-generating activities nonetheless have been deemed a "use in commerce." See, for example, SMJ Group, Inc. v. 417 Lafayette Rest. LLC, 2006 WL 1881768 (S.D.N.Y. July 6, 2006), griping leaflet using the target’s logo was deemed a "use in commerce." See generally Eric Goldman, "Online Word of Mouth and Its Implications for Trademark Law," in Trademark Law and Theory: A Handbook of Contemporary Research (Graeme B. Dinwoodie and Mark D. Janis, eds., Edward Elgar Press, 2008), discussing the statutory and common law confusion about the "use in commerce" requirement.

[53] The names of my blogs, "Technology & Marketing Law Blog" and "Goldman’s Observations," are two such examples.

[54] See Ribstein, supra note 8, at 15–16; Jon Swartz, "Sellers of Internet Addresses Surf for—and Get—Some Big Payoffs" (April 13, 2006), discussing the resurgence in domain-name valuations. Indeed, many of the highest-priced domain-name transactions have involved domain names that may never qualify for trademark protection.

[55] An existing domain name usually has an existing PageRank, a reputational score assigned by Google, that in turn can increase the quantity of referrals.

[56] Independent of the legal resolution, the person listed as the domain-name registrant has technical/administrative control over the domain name, including the ability to turn off the domain name or point it at a different blog/website. As a result, domain-name registrants have (at least in the short run) significant practical leverage over the domain name’s disposition.