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Who Owns Blog Comments?

It's a harder question than you think

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[ Technology]

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 Another difference: Once a print publication publishes, the content can’t be unpublished.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.

   
 

Who Owns Blog Comments?
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  • http://cananitogudino.blogspot.com/ Cananito

    This was discussed by Chris Pirillo… Don’t know who’s orginal idea was tough..

  • http://william-hook.com/ William Hook

    In my opinion:

    • The commenter owns the full rights to his/her comment, but;
    • The blog owner has permission to publish the comment in any type of work without permission from the commenter, but on the condition that the commenter’s name is published beside that comment too.

    That’s how I would do it with my blog, at least.

    • http://humphrey.klinkenberg.org.uk H Klinkenberg

      The issue could be resolved in part by the blogging ‘venue’ providing a "Creative Commons" statement and/or providing buttons to insert the blogger’s choice of claimed Creative Commons license. Everyone would then know exactly where they stood legally.

  • Guest

    Great ! I shall post the most assinine moronic dis-informative comments on my blog and let anyone rip those comments of as gospel truth.

  • http://potpolitics.com John Sullivan

    Whats up people ;) Man these guys are fast .

    Wanted to use this as a spamless invite to the writer’s out there

    http://100People.21publish.com

    Hey thanks to your info I’m getting ready to smoke Maddox for

    Best Blog in the Universe

    The new community is awesome and I need to spend some time in there

    And as far as that comment above that dude is the definition of LAME

    • http://potpolitics.com Guest

      Stop riding lame ass Chris Pirillos JOCk homie that dude is lame and his Ustream show is totally a waste of electricity and anybody stupid enough to give him money should jump off a bridge HEAD first

  • Guest

    Blogs are free to the commentor so the owners of the blog own the comments. Besides, commentors are anonymous so I don’t think any commentors would claim their infantile comments.

    • http://stores.ebay.com/Hughze-Beez Hughze

      A lot of commentors leave a homepage link with their comments. That basically is a "this is who I am" statement.

  • http://tech.islesv.net/ Isles Tech

    The answer to the question would seriously depend on the TOS, if there is one.

    It should be easy if there is one. But if there is none, the lawyer of the plaintiff would have the bigger problem, considering the kind of justice system that we have. In the end, the case might be decided based on other principles, not on the "who-owns-the-comment" question but whether something illegal had actually transpired or not.

    Then, we are still talking about bloggers based on the same jurisdiction… Complication of immense extent would have to be considered if the blogger is in the U.S., the commenter in the Philippines, and the server in Europe. :)

     

     

  • Larry W

    Feel free to print, display, or otherwise distribute my comments herein as deemed appropriate for the intended purpose.  You are not authorized to edit, change, expand, embellish or in any way modify my comments without written permission from the commentator (me).

    Comment on the subject: Who Owns Comments? :

    If you can be held accountable for a comment and/or its repurcussions then you must first own that comment.  If you do not own the comment, then likewise you cannot be held accountable for it.  Accountability is the issue.  If I comment that I am selling drugs to children on streetcorners across from their school, it is I that law enforcement will pursue, NOT the media that published it.  If I am liable, then I own the comment.  However, once that comment is publically published whether in print or digitally and regardless of media, it becomes public domain and can be repeated AS WRITTEN without permission unless accompanied by a specific notice stating that the comment is not permitted to be reproduced without authorization.  Modifying the comment gives new ownership to the modifier, and subects that individual to the repurcussions of ownership including slander or liable if in so doing, causes harm to the original commentor.

  • http://arizona.seowebdesignfirm.com/ arizona seo company

    Interesting topic.  I think when you comment on something its giving your imput on a subject and giving up your right to that content. Although i dont feel it belongs to the blog owner nor does it belong to the comment giver.  it belong to the community.

    • Eve

      The issue with this belonging to the community is it would be impossible for the community to agree who gets the final say on editing, and which community?  Everyone in cyberspace?  That blogsite only? Or maybe only the contacts in the social groups connected to the blog are the community? 

      A whole new Pandora’s Box.

  • jon

    Commentors dont own shit. lets make it clear.

     

    The moment they place anything on my site.. its mine.. if they have a problem with that.. go kiss my ass

     

    Its just more American bull, i own this, you own that, im superior to you, no im superior to you

    Idiots

  • http://melanie.bigmlmtruths.com Melanie Kissell

    I was scratching my head at the beginning of this article … and I’m still scratching it.

    This sounds exactly like one those "He said – She said" predicaments.  But I guess there’s nothing quite as engaging as a good old-fashioned debate! 

    Not sure what to think,

    ~Melanie

  • Eve

    Vi, when commenting on a blogsite, most often the statement "comment is awaiting moderation" appears.  To me, this is the same disclaimer used by newspaper print that shows the comment may be editied or deleted at the discretion of the blog moderator.  I am notified when someone comments, and given the option to approve or disapprove it. TOS is already in place.

  • http://www.efabe.co.uk eFABE

    Goodness, this has opened a can of worms.

    Everyone seems to be quite heated about this ownership of blogs business.

    Basically, unless you wanted to open up your thoughts, feelings, comments and so on to the WHOLE WIDE WORLD, then keep your thoughts to yourself.  Nothing is safe these days, least of all on the WWW.

    Happy blogging everyone!!

  • bev

    When reading the part about prosecutors going after bloggers and commentors I couldn’t help but shudder at the state of the law where my comments on someone’s thoughts and opinions could constitute a criminal offense.

    I don’t understand why there are people who are OK with this. I mean people who haven’t sold their soul for power like those persecuting Steyn in Canada. They don’t count.

    Isn’t it obvious to everybody that a free society needs free speech in order to work?

     

     

  • http://www.quickegreets.com Christopher R Slater

    It’s quite a difficult one this one and all boils down to copyright new laws in Europe UK and USA forbid the electronic transmission without author consent into any of their countries and included server owners alike quite clearly.

    Copyright law in those same countries now carries an added penalty of eighteen months to two years imprisonment in effort to stop the global copy paste abuse. So blog owners are bound by law to continue to remove material posted without consent of the authors

    Interesting this topic as sites like youtube and myspace should be panicking as the law also covers newspapers library books greeting cards TV ads and programs in fact about anything that can be copied and placed on a web sire as web server.

    The notion that a publisher (eg books) cannot unpublished something is not absolute, as all published material can be recalled by order of law and destroyed in a lot of cases. However as for newspapers they merely print an apology as we’re all aware (hidden away some where)

    You’ve raised a superb topic of thought here one that we will no doubts see raise it’s head regarding copyright owner ship time and again as technology advances

  • SCREENWRITERS

    HELLO JASON, PLEASE USE LAST COMMENT, INSTEAD OF FIRST TWO!! AFTER I FINALLY DID LOOK AT MY COMPUTER SCREEN!!!

    • SCREENWRITERS

      REPLY TO SELF…  JUST FOR LAUGHS!

       

      GREAT BLOG – SUBJECT JASON!!!  

       AS A WRITER OWNERSHIP IS IMPORTANT, TO AN EXTENT.  I OWN ANYTHING I SAY, IN WHATEVER FORMAT. HOWEVER, MY ONLY REAL OBJECTION IS ”DON’T EDIT ME”!!!

      IF YOU CHOOSE TO DELETE MY COMMENT GREAT!!! TOTALLY DELETE THAT COMMENT. THAT SHOULD BE THE LIMIT OF YOUR ”EDIT’ TO MY ACTUAL VERBIAGE.  TO ALTER A COMMENT SOMEONE ELSE PUTS THEIR NAME ON, [EXCEPT PROFANITY]  BY CHANGING THE WORDS, CHANGES THE INTENT OF THE WRITER.  THAT COULD POSE LEGAL ISSUES ON BOTH SIDES, AS TO RESPONSIBILITY OF ”WHAT WAS SAID, EXACTLY”    MY ISSUE IS,,,,,,,UNIONS, POLITICS, RIGHTS, ARE BEING TWISTED BY ONES WHO SEE THE LOOPHOLES……..AS EVIL OPPORTUNITIES.  IF I COMMENT SOMEWHERE, I ASSUME THE RESPONSIBILITY, NOT INVOICING YOU THOUGH… LOL!

      EVE

  • Guest

    >>

    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.

    <<

    then clinton and bush and the entertainment industry are guilty of stealing peoples thoughts and ideas that they find online and putting them in movies. Oprah too.

    they claim if it is online it is public therefore they can take your stories and put them in the movies. They stalk private mailing lists and take people stories.

    Revolution studios owners are guilty of this crime.

    Clintons have deals with movie and tv industries

     

     

  • http://www.marketingreviewonline.com/ Mayank – Start Internet Business

    I agree with William. The blog owner has the right to decide what to do with the comments – to publish or not, to remove any time he wants, as long as the comment is not altered in any way and the name of the commenter is kept intact.

  • http://www.internetrack.blogspot.com Vineet Grover

    As I understand it, the person who puts the creative work in tangible form, no matter how briefly, owns the copyright and is protected from the moment the work is put to paper, CD, computer memory, Internet, etc.

    However, in order to sue, one must first register the copyright and it is best to have done so within a few months of creation of the work. Given that few people would pay $45 to register each and every comment that is made on blogs, I would bet that most people would not sue for damages. Still, a person who feels that his/her comment copyrights were violated may just start a blog about who infringed on the copyright and that could be far more damaging and costly to a person’s reputation than dealing with a lawsuit .

  • http://grandorganproductions.org kybudman

    I think this is a tremendous and new consideration for copyright laws. I don’t know when the last time that happened! Bravo!

    Unfortunately, it got my hillbilly brain spinnin’. A couple of things came to mind.

    First off, the newspaper invites "Letter to the Editor", which usually includes the full name, address, and phone number of the letter’s author within the submission information–whether or not that information is published with the Letter.. In short, that person "gives up" their right of exclusive rights to their words with submission, as all Letters become the property of the Newspaper when the words are received. This is regardless of whether the letter is published, or altered (for whatever reasonable purpose the Editor may determine). Journalism does still have a strict code of (Imagine!) ethics, including the presumption of accuracy. Published letters may be altered, used en toto, or scrapped–based upon the determination of the Newspaper! That decision is left (use of the words) to the responsible party (Editor), based upon the needs of the Newspaper. Only when the Letter is materially changed ("Yes!" becomes, for instance, "NO!") does the question arise. But it is not a question of copyright. It is a question of accuracy. The trade is made between ownership of copyright and publication of  the Letter author’s words.

    When, twenty years later, the article (and the Letter) are referenced in a textbook (for instance), whose ownership is maintained? The newspaper. Why? The agreement still applies. 

    Secondly, I have been asked to publish one of my blogs (and the attendant comments) which, quite honestly, MAKE the blog what it is. Thousands of comments and hundreds of commenters would necessarily be involved in the publication. I hold the continuing creative copyright to the blog. That includes the unique nature of the blog as a result of the comments received. All comments are (by nature of the site where the blog exists in perpetuity) anonymous.  Could anyone reasonably argue for the preservation of the comments, replete with royalties which may result therefrom? Could I expect recompense for lousy sales? Should a Notice of Copyright Forfeit be posted on the blog’s header? I own the blog. Is it worth it?

    Finally:

    Person A writes a blog rant about unfaithful spouses. Person B writes a comment to the entry which, via anonymous reference, includes an admission of Person B’s ongoing infidelity towards their spouse. Reader C "figures out" that Person B can only be her daughter-in-law. Reader C informs Person D (her son) of his wife’s printed admission.

    In a fit of passionate outrage, Person D murders his wife–Person X!

    Who is legally and/or morally responsible for the tragic mis-identification which resulted in the untimely demise of Person X? And, can Person D sue Person A (copyright owner) (from his prison cell) for damages pursuant to the article, and the comment related to it? I would agree that Person C should be liable, but would the situation have even existed but for the copyrighted words of Person A?

    Best use, natural intent, and all other issues set aside, is it possible, or even preferable, to open this can?

    What say you?

  • http://acanac.org/blogs/isblogs/ Imelda Ortega Suzara

    A blogger owns a blog unless s/he’s paid to work for a company to do it then maybe all a blogger owns is royalty, not copyright.  But I’m not sure.

    As for a commenter, s/he owns her/his comment.

    However, anyone can refer or quote anything published online, just like any traditional printed publication, like a reference bibliography that credits the original writer.

    It would be useful to keep in mind that anyone can write a blog or comment and that opinions and information are shared for everyone.  Once something is published online, then it is meant for the public, which means that reactions negative or positive should be okay, as we all have our own opinions.

    It’s rare that anyone makes money from blogs or comments, so the chances of fighting over money (copyright/royalties) are far-fetched.

  • http://BangkokAtoZ.com Guest

    I explicitly leave copyright ownership with the writer, other than my right to publish whatever the person has written.

    I do go one step further by informing the writer I will, upon request, remove the piece and delete it from my host server so no one can unearth it.  I feel obliged to do so because I’m not in a position to pay people to contribute.

    Private comments, especially ones negative, about my website are a somewhat different matter.  Not wanting to embarrass the writer by publicly attributing a comment to a writer, I generally follow the rule of thumb of not quoting the person and not naming him or her, but I do sometimes publicly mention the comment in my weekly e-column, especially if I either feel it’s a valid criticism that I’ve accepted and followed to modify my ways or if I feel it’s unacceptable but deserves publicly disputing, citing my reasons why.  (I apply the same standards to comments people tell me in person, which is pretty darned often.)

    However, if a person commenting in any format explicitly tells me the communication is private and he or she wants it kept that way, I respect that request 100%.

    I guess I tend towards the spirit of the European law, though I’m American.

    I often think about this issue, not only because I do have my own website but also — and especially — because I live in Thailand, one of the countries with the highest rates of piracy of legally-protected intellectual property.  And even more especially because Thailand isn’t a signatory to the Berne Convention, signing on only as an "observer," whatever that means, another question never satisfactorily decided by the International Court of Justice nor any other court.

    In short, at the end of the day, I believe the creator of any words has an absolute right to ownership of those words, abesent a legal agreement to the contrary.  I have no problem with, say, a newspaper or other publication, whether a paper one or a digital one, citing submission equals surrender of some or even all rights to what I’ve said or written.  On a few occasions I’ve written letters to editors on a private basis, and have explicitly said the observation wasn’t for publication.  In fact, I make it a point to open and close with a comment to that effect, so the editor can’t later claim I didn’t.  And I keep a digital copy for evidential reasons, should an editor be so stupid as to ignore my statements.  And, yes, were an editor to do so, I would turn my lawyer loose on the publication generally and the editor in particular.  And my lawyer’s and his firm’s specialty is nailing violaters of intellectual property rights.  On that side of the issue, I’m both ferocious and relentless.

    I do grant you the right to publish these comments.  I also retain the right to repeat them elsewhere, if I so wish.  And, of course, you have an absolute right not only to publish this, but to decide to trash it.  :-)

    Sincerely,

     

    Mekhong Kurt
    Bangkok, Thailand
    http://BangkokAtoZ.com 

  • Joe Ferrara,Sellsius blog

    Easy call.  Absent any TOU to the contrary, the commenter owns the copyright in his/her work of authorship.  One of the many rights of copyright is the right to display publicly (publish). By commenting, the owner grants the blog owner the right/license to publicly display/publish the comment on the owner’s blog only.  The right/license to publish includes the right to unpublish, i.e delete the comment. 

    So Scoble is right in that he owns the comment but any blog owner is not bound to keep good care of it and may in fact toss it.  If Bob is concerned about his work, he ought to save it himself or not give his publishing right/license away.

    http://tinyurl.com/6qhso7

  • http://www.rankbetterseo.com/seo-web-design.php seo web design

    Interesting.  When you comment on a post or article its giving your imput on a subject I dont feel it belongs to the blog owner or to the commenter.  it belong to the readers of that post or blog to then give more feedback on.

  • http://www.fiancee-visa.net K1

    I think this is a difficult question. Although the outcome could either ruin or boost the frequency of comments.

  • http://www.seowebdesignfirm.com/ seo syracuse

    Great article Jason, look foward to reading more of your posts.

  • http://www.fiancee-visa.net Fiancee

    Great article Jason, way to make the community think.

  • http://www.encyclopedia.com/doc/1E1-AckroydP.html Peter Ackroyd

    Another great article Jason

  • http://www.catskillwebsitedesign.com/ SAL

    Something to ponder… Tx

  • http://www.attorneyservicesetc.com LAlawblogger

    Personally, the comments belong to the blog site. This is because upon commenting on a certain blog, the commenter in effect waived its right to it. However, the blog site cannot use the same in any other site or area without acknowledging the commenter therof. 

  • http://personalinjurydefenders.com/ LAlegaldefender

    This is a tricky issue. Too bad violations of intellectual property rights is not that easy to prove and establish. However, in personal injury accidents where you can see the damage, harm or injury done, proving liability is neither easy.

  • http://www.2blogpoker.com/ Guy

    In my opinion the website owner owns the comment and has the right to do with it as he sees fit. But he also has the responsibility to ensure that the comment is suitable and not illegal or defamatory in any way. The trouble is then you spend half your time moderating comments. I gave up on my site especially with all the automated rubbish and have now turned it off.

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  • http://www.personalinjurydefenders.com/ j. law

    It is the commenter who owns the the comments. We can very simplistically liken this to a letter given to somebody. Under the law, the copyright is owned by the maker of the letter. The entire contents of the letter, from style to how the words were arranged, pertains to the writer. However, the letter consisting of its physical form, meaning the document itself, belongs to the recepient. He can keep it, burn it, tear it without the write’s permission. But he cannot display it publicly or publish its contents without such permission. This last feat doesn’t defeat the comparison for we can consider that by submitting the comment online, the commenter gave permission to the blogger to publicly display his comment. The commenter actually expects that his comments are going to be published or displayed online.

     

     

     

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