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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.

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