Legal and business advice for online publishers and bloggers

Over the months that I’ve been writing about legal issues for OJR, the consistent issue that has emerged is that online publishers need good legal representation. But that imperative has been matched by an equally vexing question: how does a small publisher get the right legal advice at an affordable price? Fortunately, there’s a host of good resources available, and some fairly clear guidelines on when legal advice is needed. Here’s what I learned from talking to the experts and scouring the Web.

Consider your legal exposure when choosing a structure for your business. Mark Anderson, an intellectual property attorney at Masur & Associates, says that, “Especially in terms of copyright infringement claims, damages can be very high, and if you’re not insulated by a corporate entity… then, your personal assets are potentially at stake. If somebody sues you for something that you wrote on your website, they’d be suing you personally, then you could lose your house; you could lose your car. But if you’ve got a business set up, that’s separate from you, it’s the business that would be sued, and the most you could lose from that is what you put into the business.”

According to Anderson, many small publishers find that a limited liability company, or LLC, provides the right combination of tax and legal advantages. Because an LLC is a corporation, its assets and liabilities are separate from those of its principals. However, some corporate structures have a disadvantage, because both the corporation and the individuals deriving income from them pay taxes. Owners of LLCs, along with S Corporations, can avoid this double taxation when their revenues are small, but they can change the way they are taxed if they start to make more money. LLCs have other additional advantages – for example, the ownership rules are more flexible.

An ethics policy or code of conduct may help protect you from libel or defamation charges. Ethics codes have their own virtues, and they don’t protect a publisher from legal action by themselves, but they can help to set the tone for an online community and clarify the publishers’ intent.

The debate over codes of conduct has become more intense because of the recent controversy surrounding threatening comments and pictures posted about prominent technology blogger Kathy Sierra. Sierra told readers that safety concerns led her to cancel speaking engagements and hide out in her home, awaiting the results of a police investigation. What followed was a vigorous, ongoing debate including efforts to create a bloggers’ code of conduct. [Full disclosure: I am a contributing editor for BlogHer one of the groups that figures prominently in both the Sierra controversy and the debate over blogging guidelines. BlogHer’s community guidelines inspired a proposed code of conduct proposed by well-known web writer Tim O’Reilly. Both codes pledge that online publishers will ban “unacceptable content” — content that might be libelous, abusive, or that might infringe on a copyright or trademark.

Anderson says it’s “tough to say” how a bloggers’ code of conduct might affect a legal proceeding. “There are certain protections under the law for journalists, and now it’s getting tougher and tougher to define who, exactly is a journalist. Potentially, adhering to one of these codes might be a factor that weighs in favor of somebody being treated as a journalist under certain laws.”

Small publishers doing journalism have to think carefully about the risks they are willing to take, especially since the legal definition of a journalist is subject to debate. Of course, freelancers and small publishers who commit acts of journalism have to understand that courts may not be willing, for example, to extend state shield laws protections to them. It’s also important to understand that federal prosecutors have broad subpoena powers when it comes to forcing the disclosure of information they deem important for a criminal investigation.

Nothing better illustrates the risks small publishers take than the case of videoblogger Josh Wolf, who was released from federal prison in early April after serving 8 months for refusing to turn over video outtakes from a July 2005 demonstration to a grand jury. Wolf claimed that, as a journalist, he was entitled to withhold the information under California’s shield law. However, the court rejected his claim because Wolf was not employed by a news organization at the time that he shot the video.

Be clear about your purpose. It’s because of Wolf and other citizen-journalists that Christine Tatum, president of the Society of Professional Journalists, thinks that the definition of a journalist should be expanded beyond those who are paid to report the news. “We want to define journalists as people who are gathering information with the purposes of distributing it,” Tatum says. “Rather than question for me being, ‘was that person a journalist?’ the question for me is, ‘was that person practicing journalism?'”

That view of journalists was part of the reason SPJ donated $31,000 to Wolf’s legal defense and helped him obtain the services of top-notch legal counsel. But Tatum acknowledges that the law has not embraced that definition, and neither do many bloggers. Noting that many bloggers say they aren’t journalists but want the legal protections afforded to journalists, she said, “I encourage people to really take a long and hard look at what is it you are, really?”

Take advantage of the growing number of educational resources and training opportunities made available by advocacy groups and professional organizations. Small business attorney Nina Kaufman notes that the Electronic Frontiers Foundation has a plethora of free resources, including legal guides for bloggers. The Media Bloggers Association is just one of several organizations that offers training in journalistic practices and legal issues. They have also taken the lead in advocating for press credentials for its members, most notably in the recent trial of Lewis “Scooter” Libby.

The MBA’s success echoes Anderson’s argument that, “the more professionally you run your blog site, the more you act like a traditional journalist, the more you are going to be treated as a real journalist. That would include adhering to a code of ethics.”

Be smart about copyrights. Anderson quips, “For starters, don’t use anything that belongs to any one else.” Seriously, Anderson urges publishers to educate themselves about fair use guidelines, which permit the use of small portions of copyrighted material for comment, criticism, parody or educational purposes. It’s a serious matter: Anderson warns that copyright judgments come with statutory damages that can be as high as $150,000 per violation. For that reason, Anderson urges publishers to think carefully before choosing to defy a request to remove material that someone claims is infringing on a copyright or trademark.

EFF maintains that major copyright holders such as entertainment companies often make abusive use of copyright laws — combating that abuse is one of their major areas of advocacy.

But online publishers are also copyright holders, and sometimes they, too, have to take action to protect themselves. Blogger Elise Bauer warns that there are some people who use RSS feeds to aggregate others’ content without their permission, forming their own revenue-generating website. Bauer urges using the Digital Millennium Copyright Act against them, either by filing a complaint with Google for content scrapers who use its AdSense program, or by complaining directly to the DMCA office itself.

When in doubt, ask a lawyer Anderson said the published guides and training workshops are great for general knowledge, but it’s best to consult an attorney for really specific questions. And EFF spokeswoman Rebecca Jesschke says that their attorneys have found that some media lawyers are willing to consult with small publishers for a reduced fee, assuming that the matter in question isn’t too involved.

Bottom line: choosing to publish online is an enormous responsibility, and it carries risks. But a professional attitude, self-education and a few proactive steps can go a long way.

Consider liability insurance Anderson says media liability insurance can offer “peace of mind” for online publishers. One leading provider, Media/Professional/Insurance, says the right policy offers much more. M/PI is one of two companies specializing in policies tailored for cyberspace-based businesses.

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In addition: The SPJ, EFF and MBA are just a few of the professional organizations and advocacy groups that offer legal advice and support. Others include:

Seven big ideas (and one pet peeve) from BlogNashville

Robert Cox was frustrated. The blogger and former currency trader for Citibank attended the last BloggerCon gathering at Stanford University, announcing the formation of the Media Bloggers Association. But all around Cox were liberal bloggers, liberal academics and people who did not share his conservative worldview.

His idea? Launch a similar blogger convention but place it in a red state in the heart of America, with the hope that the sessions would mix conservative and liberal bloggers. Thus, BlogNashville was born.

Last weekend, I attended this melting pot of a convention, and discovered a new game among attendees: Guess the Political Orientation. The game starts when you meet a new person, and a conversation ensues. Without asking the person, you try to infer whether he or she is a liberal or conservative blogger by their conversation, their accent, their hometown, whatever. You might even try to draw a conclusion based on whom they are following around — Dave Winer (liberal) or Glenn Reynolds (conservative).

For the most part, this game didn’t hinder the relatively loose and congenial attitude of the wide array of bloggers who came to Nashville — many of whom are apolitical and blog about music, sports, podcasting, or spreading blogging to other countries. Ironically, the only major red-faced moments came during the “Respectful Disagreement” session led by Winer. And even then, Winer seemed to have kind words for some of the conservatives he met.

These types of conferences are usually great places for me to actually meet people face to face whom I’ve only known via the phone or e-mail. That was again the case, but it also worked in reverse. After I got home, I read for the first time some of the blogs of people that I’d met and learned more about their writing style, their interests, and how they viewed the conference.

Though I still don’t have a Weblog, I’m going to use this space to share some great ideas and projects I learned about at BlogNashville — and to spout off on one of my pet peeves at these types of conferences.

Great Ideas

1. Milblogging session includes people from afar. It was hard to attend all the sessions, as there were three sessions going at once. One that I missed but wished I had seen was the session on military bloggers. Former Pentagon programmer and Winds of Change blogger Robin Burk led the session, and had military bloggers and even a military wife on hand. Plus, she had the Veterans of Foreign Wars of North Carolina run a webcast of the session, and had a few military bloggers on video and audio links to Nashville — plus a live chat room.

“We got Blackhawk and then Mustang23 on video,” Burk told me later. “Mustang23 is a company commander in Iraq right now, so it must have been the middle of the night for him. Greyhawk joined us by audio only from Germany, while in the chat room Barcepundit joined in from Spain.”

Burk explains more about the global hookup for the session here, with some of the chat here.

2. Nashville has the first full-time local TV station blogger. Brittney Gilbert was recently hired by Nashville’s WKRN-TV Channel 2 to write a blog called Nashville Is Talking. Of course she’s not the first local TV station employee to start a blog by any means, but she’s probably the first one whose only job at the station is to sit at a computer and blog. Gilbert told me she goes into the station, and blogs from 9 to 5 each weekday. She did recently appear on-air in a story about the Tennesee governor starting to blog, but so far, that’s been an anomoly. While her blog has a live aggregator of various Nashville-based blogs, it doesn’t necessarily live up to its moniker at the top of the page: “Operated and maintained by News2 as part of our commitment to listen.” The problem is that I couldn’t find a link to the blog from anywhere on the station’s main Web site.

3. Spirit of America plans to offer an anonymous blog service. The non-profit Spirit of America is developing an anonymous blogging service that would help bring free speech to people in countries where governments are clamping down on Internet freedom. The group has already started testing an Arabic blogging tool, but Spirit of America contractor Adam Shostack attended BlogNashville to network with others and learn more about the technology required to keep bloggers anonymous in countries such as Iran and China. He’s already set up a wiki to explore requirements for such a system, but most people attending a special Anoniblogging Roundtable at BlogNashville said there’s always a way to track people hiding behind almost any type of anonymizing system.

4. “Open Source” radio show coming from PRI. Public Radio International is planning to launch a new show with Christopher Lydon that will attempt to bring “the sound of the Web” to public radio. One of the show’s producers, Brendan Greeley, ran a session at BlogNashville on podcasting, and told me that the new show wouldn’t really be about blogging, but rather would treat bloggers as “fixers” in a foreign country. In other words, the bloggers who have deep knowledge on a subject would come on the show and share their knowledge with listeners. Already, the show has a blog up, which includes audio of their test show and thoughts on how they might create theme music via Creative Commons-licensed tunes.

Greeley was also responsible for one of the more interesting interactive experiments at BlogNashville, called “Speak, Nashville, Speak.” Basically, anyone attending the conference could call a special number, leave a message describing what they were thinking, and then the audio would be posted automatically onto a blog for everyone else to hear. It ended up being kinda quirky, but a nice idea nonetheless.

5. BlogNashville site aggregates blog posts and photos from conference. OK, it’s the ultimate self-referential move, but that doesn’t mean it’s not helpful. The conference’s Web site includes a page called “Discussion,” that’s not really a discussion but actually an aggregation of all the BlogNashville blog posts via Technorati, photos via Flickr and Web links via Not only is it a great running tally of the post-convention commentary, but you can also subscribe to RSS feeds to get the latest in your newsreader. This is the type of page that should be a requirement for all conventions in the future.

6. Glenn Reynolds gives a videoblogging demo. Ever wish that some of blogging’s biggest proponents actually rolled up their sleeves and got dirty with the technology? That’s what InstaPundit blogger and University of Tennessee law professor Glenn Reynolds did at the conference. Reynolds basically interviewed a bunch of attendees using his pocket digital camera’s movie feature, and showed how easy it was to create a video report from the event with passable sound and image quality.

7. Blogging classes coming to Poynter’s NewsU. Robert Cox, president of the Media Bloggers Association, announced that he was working with the Poynter Institute to offer up online classes for journalists and bloggers explaining blogging basics. The classes would be included in Poynter’s NewsU, and might help journalists learn how to set up blogs, or could help bloggers get basic legal tips to protect themselves. During one session, Cox mentioned that his impetus for starting the MBA was when he was legally threatened by The New York Times for doing a satire of its corrections page.

Pet Peeve

1. Put down the blog. There were times at the conference where it seemed like everyone in the room was on a laptop blogging, or taking pictures or video of each other. That’s understandable, as this was a conference for bloggers. But c’mon. Here you are in a room with people and you have a chance to engage and listen and talk — to actually participate interactively face to face in real time. So why not put down the laptop, turn off the cell phone, put away the digital camera for some time and really be there? Maybe there’s a way to set some ground rules: Turn off the portable electronic devices for the first 55 minutes, then blog and photograph for 5 minutes. Sure, you want to do other work, IM with friends, etc. But why travel so far to a conference just to stick your head in a laptop for most of the time you’re there?