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Blogs, Wikis, BlogosphereAnd the Law

Rudy GuyonSenior Corporate Counsel

Fujitsu America, Inc. Legal Dept.rguyon@us.fujitsu.com; 408 746 6545

For Corporations

Nov 14, 2006

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Some References

Wiki: Wikipedia on various technology topics.Blogs: Dennis Kennedy: Debbie Weil; Jonathan Schwartz; A Blog Around

the Clock; Blawg Review; David Sifry’s Alerts; Law Dawg Blawg; Rudy Guyon’s Weblog (Fujitsu internal); EFF Legal Guide for Bloggers; Internet Forum; Samizdata.net; and others.

Articles: Robert Ambrogi, What RSS Can Do for Lawyers, Law Technology News,August 5, 2005 ; Patrick Robben, Welcome to the Blogosphere, Business Law Today, May/June 2006

Study: Nora Barnes, UMass/Dartmouth, “Behind the Scenes in the Blogosphere, Advice from Established Bloggers” 2006

Presentations and PowerPoints: Raymond Hixson, Karen Dempsey, and Daniel Appelman, “The Legal Minefield of Employee Blogging”; Mia Garlick, “Creative Commons”; Rick Danis, “Content Syndication”; Bill Goines on blogging law.

Company Policies: Sun, IBM, Plaxco, FujitsuTerms of Use: TPMCafe.com; TimeWarner, FujitsuAnd so on.

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Wikis• RSS Technology

• Multiple users work on a common website; add; subtract; modify

• Fast changes!

• Can control editing.

• Wiki companies are hot targets – Jotspot bought by Google

• Wikis have a theme

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Wiki Editing History• Wikijunior• From Wikibooks, the open-content textbooks collection• Revision history

View logs for this page• Jump to: navigation, search• (Latest | Earliest) View (previous 50) (next 50) (20 | 50 | 100 | 250 | 500). Diff selection: mark the radio boxes of th

e versions to compare and hit enter or the button at the bottom.Legend: (cur) = difference with current version, (last) = difference with preceding version, M = minor edit.

• (cur) (last) 04:50, 18 October 2006 Guanaco (Talk | contribs) m (Protected "Wikijunior": direct link from navigation sidebar [edit=autoconfirmed:move=sysop])

• (cur) (last) 12:43, 14 October 2006 Xixtas (Talk | contribs) (add news about 1st q voting) • (cur) (last) 06:39, 11 October 2006 Draicone (Talk | contribs) m (RV) • (cur) (last) 06:26, 11 October 2006 Queen Of Spades (Talk | contribs) • (cur) (last) 16:35, 9 October 2006 202.154.241.6 (Talk) (→New Title Policy) • (cur) (last) 01:50, 9 October 2006 MiltonT (Talk | contribs) m (Revert: There are only nine titles.) • (cur) (last) 20:11, 8 October 2006 24.155.184.92 (Talk) (→Current Titles) • (cur) (last) 16:23, 6 October 2006 Xixtas (Talk | contribs) (Remove title added without going through new title proc

ess.) • (cur) (last) 12:36, 6 October 2006 61.95.167.91 (Talk) (→Our World of People) • (cur) (last) 01:51, 5 October 2006 MiltonT (Talk | contribs) m (→Current Titles) • (cur) (last) 21:12, 1 October 2006 216.84.66.130 (Talk) (→News) • (cur) (last) 21:11, 1 October 2006 216.84.66.130 (Talk) (→A World of Discovery and Innovation) • (cur) (last) 13:03, 1 October 2006 Xixtas (Talk | contribs) (Fix voting link.) • (cur) (last) 12:47, 1 October 2006 Xixtas (Talk | contribs) (Add Link to The Elements) • (cur) (last) 12:46, 1 October 2006 Xixtas (Talk | contribs) (Remove Old News)

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“Wikiality”

“[On Wikipedia] any user can change any entry, and if enough other users agree with them, it becomes true. ...

“Who is Britannica to tell me that George Washington had slaves? If I want to say he didn't, that's my right. And now, thanks to Wikipedia, it's also a fact.”

Stephen Colbert, The Colbert Report (2006)

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RSS & RSS Feeds

• Really simple syndication• The software technology used by web publishers to

create and distribute news and content• The software that blogs, wikis, & newsreaders read• Users can subscribe to content on a blog or wiki or

media website, and this content is distributed to and accessible on your newsreader via “RSS Feed”.

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Homepages, Newsreaders & Aggregators

• Technology for subscribing to, gathering RSS feeds

• Search the blogosphere and media websites and have specific RSS content streamed to your newsreader– Newsgator, MyYahoo, Bloglines, etc.

(subscribe to RSS feeds)– Digg, Boing Boing, etc. (publish RSS feeds)

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RSS Code• <?xml version="1.0"?> <rdf:RDF xmlns:rdf="http://www.w3.org/1999/02/2

2-rdf-syntax-ns#" xmlns="http://purl.org/rss/1.0/"> <channel rdf:about="http://www.xml.com/xml/news.rss"> <title>XML.com</title> <link>http://xml.com/pub</link> <description> XML.com features a rich mix of information and services for the XML community. </description> <image rdf:resource="http://xml.com/universal/images/xml_tiny.gif" /> <items> <rdf:Seq> <rdf:li resource="http://xml.com/pub/2000/08/09/xslt/xslt.html" /> <rdf:li resource="http://xml.com/pub/2000/08/09/rdfdb/index.html" /> </rdf:Seq> </items> <textinput rdf:resource="http://search.xml.com" /> </channel> <image rdf:about="http://xml.com/universal/images/xml_tiny.gif"> <title>XML.com</title> <link>http://www.xml.com</link> <url>http://xml.com/universal/images/xml_tiny.gif</url> </image> <item rdf:about="http://xml.com/pub/2000/08/09/xslt/xslt.html"> <title>Processing Inclusions with XSLT</title> <link>http://xml.com/pub/2000/08/09/xslt/xslt.html</link> <description> Processing document inclusions with general XML tools can be problematic. This article proposes a way of preserving inclusion information through SAX-based processing. …

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“RSS is an exciting technology for delivering information that you want, when and how you want it. We have only begun to discover its potential.”

Murley, Law Dawg Blawg

“If you are not yet using RSS, you are missing out on the single best way to get news and updated information via the Internet.…RSS enables delivery of Web content directly to your desktop.”

Ambrogi, What RSS Can Do for Lawyers

RSS True Believers

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Blogs

• Uses RSS Technology• New material always posted on top—user

friendly, easy to update blogsite• Posts by blogger of topical material• Usually links to information sources, other blogs• Comments by readers• Dialogue with blogger and audience, other blogs• Continuously updating forum• Focus on topics, or blogger personality, or both

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Blog Software

• Typepad

• Blogspot

• Moveable Type

• MySpace

• Blogger

• FrontPage

• Etc.

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Blogosphere

• Over 50 Million Blogs!• Over 175,000 new ones per day! 2 per second!

• Technorati (July 2006):

• New Vocabulary– “Like all Internet formats, weblogs, also known as

'blogs', have developed many terms which may baffle newcomers.”

• http://www.samizdata.net/blog/glossary.html

• Three largest blogosphere languages– Japanese (37%); – English (31%) – Chinese (15%).

• Technorati (March 2006)

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Blogs Blogs Blogs

• Politics– Daily Kos

• Science– Scienceblogs

• Legal– Blawg Review

• Tech Gossip– Valleywag

• And so on…

Acephalous Agonist, The

AlphaPsy BibliOdyssey Brain Waves BrainEthics Cliopatria

Cognitive Daily Conscious Entities

Corpus Callosum, The Cosmic Variance

Crooks & LiarsDaily Kos

Developing Intelligence Easily Distracted

Eteraz Evolution List, The

Experimental Philosophy Fragments of Consciousness

Frontal Cortex, The Future Pundit

Gene Expression Hot Cup of Joe

Huffington Post, TheTalkingPointsMemo

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Blog Search Engines

• Technorati

• Google beta

• Bloglines

• Etc.

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Bloggers Have Personality• About Jonathan Schwartz’s Weblog: “…Schwartz is

president and CEO of Sun Microsystems. An inveterate blogger, Schwartz has led Sun's drive toward transparency and openness. Jonathan is an outspoken advocate for the network as a tool for economic, social and political progress. “

• About Scobleizer: “Robert Scoble (born January 18, 1965) is an American blogger, technical evangelist, and author. Scoble is best known for his popular blog, Scobleizer, which came to prominence during his tenure as a technical evangelist at Microsoft. ”

• From A Blog Around the Clock: “I am a Red-State Serbian Jewish atheist liberal PhD student with Thesis-writing block and severe blogorrhea trying to understand the world by making strange connections between science, religion, brain, language and sex.…“

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Should Your Company Blog?

• “Blogging is not an optional endeavor. Those that don’t will not survive”Barnes, UMass/Dartmouth study “Behind the Scenes in the Blogosphere: Advice from Established Bloggers”

• Does your demographic blog? – If you build it, will they come?

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How a Corporation Might Use a Blog

• Provide Content• Draw Traffic• Get Ad Revenue• Build Linked Partner Network• PR about industry, product, service• Provide Support• Disseminate information / training/ knowledge

– Hot legal topics– How to use the website, etc.

• Learn from customers, employees• Forum for business or entertainment

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Internal Blogs

• Simplest Use/Least Legal Exposure

• Intra-company

• Forum for group discussion

• Disseminate ideas, information

• Perform Training– Legal Blog?

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Desirable Company Policies

Relevant to Blogging are:

• Online Discourse Policy

• Website Terms and Conditions

• Internet and Telecom Usage policy

Employers should strive for consistent implementation of their policies

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Online Discourse Policy/Blog Policy

Key terms for your Company’s policy:• Employee’s Legal Responsibility for

Commentary.• Speaking on your own behalf and not for

the company. • Confidentiality Duties• Do not let online discourse interfere with

your work.• Violations may result in disciplinary action.

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Blog Policy: Include Blog Etiquette

• Provide Context, Be Thoughtful, Add Value

• Double Check Facts and Provide Sources

• Be Respectful: Write as if your boss, mother, or child can read your commentary.

• Welcome “off-blog” feedback Correct your mistakes.

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Website Terms of Use

Ownership of Content

Disclaimers of Warranties

Disclaimer for Links to Third Party Links

Company Rights to Transmitted Materials

Prohibited Uses.

Third Party Rights to Link, Use

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Internet & Telecom Use Policy

• Policy directed at employees about use of Company website and telecom facilities

• Make sure policy covers blogging or update it

• Some Key Points:– Company’s Ownership of Facilities– No Disrupting or Misuse of Facilities– No Harassment– No Expectation of Privacy– Company Monitoring (even for password areas)

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Content Rights

Your company puts a blog on the WWW:

• Ownership of or rights to publish content– Granting rights to republish site content

• e.g. Creative Commons license

– Obtaining rights from content providers, users who post

• Require blog registration (Clickwrap); or• Post Terms of Use (Browsewrap)

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Creative Commons

• Licensing others to make use of your content

• Do-it-yourself

• Various choices (restrictive to unrestrictive)

• “Some Rights Reserved”

• Creativecommons.org

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Creative Commons LicenseAttribution-NonCommercial-ShareAlike 1.0 You are free:to copy, distribute, display, and perform the work to make derivative works Under the following conditions: Attribution. You must attribute the work in the manner specified by the author or licensor. Noncommercial. You may not use this work for commercial purposes. Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only

under a license identical to this one.For any reuse or distribution, you must make clear to others the license terms of this work. Any of these conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above.This is a human-readable summary of the Legal Code (the full license). Disclaimer  Learn how to distribute your work using this license A new version of this license is available. You should use it for new works, and you may want to relice

nse existing works under it. No works are automatically put under the new license, however.

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More on Copyrights

• Bloggers frequently rely on “fair use” of copyrighted works

• Employers may be liable for copyright infringement based on agency, contributory or vicarious liability theories

• DMCA “Notice and Takedown” safe harbor only protects ISPs

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Advertising Laws

• Promotional Advertising Content subject to– FTC Act Section 5 preventing unfair or

misleading business practices– State Unfair Competition Laws– Truth in Advertising Laws

• Companies that sell Ads on Blogs should– Develop Advertising Guidelines– Restrict Ad content

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Libel and Defamation

• Defamatory posts

• Trade Libel

• Libelous Posts

• Liability for third party content

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Privacy Torts• False Light

• Private Facts

• Intrusion into Seclusion

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Bloggers who Harass

Employer duty to not allow harassment (from employee blogging, too)

• Hostile “Work Environment”– Blogs can be setting related to the workplace if part of

a pattern of harassment in the workplace. Blakey v. Continental Airlines

• NJ Supreme Court, Harassment of first female pilot occurred in part on Internet forum.

• Protected Categories Only (Many!)• Employers who take prompt corrective action

– Have a defense against non-supervisor’s harassment• Strict Liability for Supervisor Harassment

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Bloggers who DiscloseTrade Secrets, Confidential Info

• Trade secrets– Value from being not generally known– Reasonable steps must be taken to maintain secrecy

• Posting trade secrets can destroy secrecy– Best to take immediate action to try and protect

secrecy– Files may be cached on Internet forever

• Wrongly posting confidential information can expose Company to liability

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Journalism and Outing Anonymous Posters

Suppose a company finds its trade secrets on a blog, and the blogger/journalist wants to keep sources secret.

• Some bloggers are journalists• Some state laws protect privacy rights of journalists• California has “reporter’s shield in its constitution grantin

g absolute protection to journalists that can only be overcome by countervailing federal constitutional right

• Qualified privilege to keep private names of confidential sources

• In “O’Grady vs Superior Court” (Recent Apple Case), bloggers were found to be journalists and did not have to reveal sources related to tortious misappropriation– Criminal misappropriation different.

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At Will Employment

Employees who blog outside work on non-work matters

• At Will Employees can be terminated for any reason.– “Dozens of people have been fired for blogging.…In many

cases, there is no legal means of redress….” EFF – “While your right to free speech is protected by the First

Amendment, this protection does not shield you from the consequences of what you say…In states with "at will" employment laws like California, employers can fire you at any time, for any reason. And no state has laws that specifically protect bloggers from discrimination….” EFF

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Employee Privacy Rights• California Labor Code 96(k) and 98.6 prohibit

discharge or discrimination against an employee for “lawful conduct during nonworking hours away from the employer’s premises. – Such laws have not been tested in a blogging context. – No known successful wrongful termination suits by

employee terminated for private blogging

• Cannot terminate if the employee has a reasonable expectation of privacy in their blogging.

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Protected Blogging

• Employees cannot be terminated for blogging that constitutes protected conduct– Employee conduct with reasonable

expectation of privacy. – Political activities– Labor organizing– Whistleblowing

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Whistleblowing

• Opposing unlawful activity

• Exercising a legal right

• Speech regarding terms and conditions of employment

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Labor Organizing & Work Conditions

• Employer may not retaliate against employees who engaged in concerted activities for collective bargaining or mutual aid and protection are protected under National Labor Relations Act

• Employees can’t be fired for blogging about work conditions, employment terms, wages, etc.

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Work-Related Blogging

• Employers can enforce their policies against employees who blog outside the workplace on work-related matters, or whose blogging impacts the workplace

• Employers legally obliged to regulate employee conduct re Trade Secrets & Harassment

• Employers can read employee public blogs• Employer access to restricted blogs may violate Stored

Communications Act.• Employer can monitor Company blogs so long as no

reasonable expectation of privacy• Employees who blog on private matters using workplace

equipment and time are subject to employer policies

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Securities Law

• Public companies should not disclose material non-public information on blogs prior to general dissemination

• Fraudulent material statements &10b5 liability

• Forward Looking Statements” disclaimer

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Insure Risks?

• General liability policy may cover blogging

• Or multimedia policies are available

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The End.