Blogging can be risky business. Is coblogging even riskier?

By Eric Goldman

Beginning a blog seems tantalizingly easy. Google’s Blogger service invites users to “Create a blog in three easy steps.” This solicitation suggests that the decision to blog can be made casually, but it is hardly a trivial decision. The adverse consequences of blogging can be severe, ranging from being fired to being sued, and bloggers — and the service providers catering to them — rarely discuss these risks. Add some cobloggers to the mix, and your liability and risk increase, even as you share the workload.

Many bloggers form coblogging relationships casually, without considering the legal implications. The law inevitably will blindside some of these cobloggers. Bloggers may find unexpected liability for their cobloggers’ posts or actions, or cobloggers who decide to separate may find that default legal agreements allocate the bloggers’ rights and responsibilities in counterintuitive ways. This article analyzes the law of coblogging as well as some of those counterintuitive and unexpected consequences.

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 limited/definite period of time. Guest bloggers typically do not 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 has principal responsibility for the blog’s administration; in other cases, all bloggers share administrative rights. Collectively, I refer to guest blogging and joint/group blogging as “coblogging.” Because bloggers working together in an ongoing relationship have more exposure to the legal consequences of coblogging, this article focuses mostly on those kinds of blogging.

Most blog collaborations probably start informally, and little if any money changes hands. A single blogger might begin the project to achieve a personal or business goal, then invite a coblogger to share the work and offer his or her own perspective. If the blog grows, the pair (or group) might find itself earning money, or at least attracting enough attention that issues of liability for what cobloggers say could become important.

Coblogging Relationships

Just as in business, the law can characterize cobloggers in a variety of ways, including as general partners, employers and employees, joint copyright authors and independent contractors.

A general partnership is “an association of two or more persons to carry on as coowners of a “business for profit” 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. Upon the partnership’s dissolution, partnership assets and liabilities are divided among all partners.

Many blogs do not generate revenues of any kind and therefore may not qualify as businesses for profit. In these situations, it is unlikely that cobloggers would be characterized as partners in an implied general partnership. In contrast, if a blog generates revenues (such as through advertising), it is 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. However, guest bloggers may not be deemed members of that partnership because they may lack the requisite intent/permanence to be “carrying on” together. Generally, a partnership will own the work prepared by its partners.

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.” An employment relationship might exist when a coblogger (or a group of cobloggers) has principal responsibility for the blog’s operations and other cobloggers are asked to perform specific tasks. Depending on the situation, guest bloggers also could be employees.

In an employment relationship, the employer is vicariously liable for his or her employees’ acts within the scope of employment. Employers also can be liable for employees’ acts under other doctrines as well, such as the doctrine of negligent supervision. The employer would automatically own all copyrights created by the employee within the scope of employment. Additionally, a blogger-employer could be required to pay minimum wages to the blogger-employees, withhold taxes, issue W-2s and pay unemployment insurance (among other duties). With respect to ownership, employers automatically own their employees’ copyrighted works prepared within the scope of employment, so any blogger-employer would automatically own the blog posts prepared by blogger-employees.

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.” 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 the joint work. In that case, the bloggers will coown the work and have a duty to account to their coowners for any proceeds from the work. However, more typically, blog posts are neither inseparable nor interdependent, which means that blogs are more likely to be characterized as collective works, in which case a coblogger could continue to publish a departing coblogger’s content as part of the blog or a revision to that blog.

If the bloggers do not fit into the prior three categories, they are probably independent contractors. In that case, the bloggers will retain ownership of any assets they create, and ordinarily they (subject to many exclusions) will not be liable for each other’s acts.

Legal Liabilities

Now that you understand who is liable in coblogging relationships, let’s take a look at the kinds of liability a coblogger — or any blogger, for that matter — faces. Cobloggers may be liable for copyright infringement, trade-secret misappropriation and a variety of other claims.

A blogger who publishes copyrightinfringing content to the blog may be directly liable for the infringement under standard copyright law. The fact that the publication venue is a blog should not affect the copyright-infringement analysis. In addition to the blogger’s direct liability, any cobloggers who are deemed partners or employers of the infringing blogger also should be automatically liable for the direct infringement. However, even if cobloggers are independent contractors (or a blogger is an employee), the other cobloggers may be contributorily or vicariously liable for a blogger’s infringement.

The precise contours of contributory and vicarious copyright infringement for online activities are subtle and dynamically changing, so they are beyond this brief article’s scope. However, I think bloggers face a nontrivial threat of copyright infringement for their cobloggers’ 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 cobloggers’ posts.

In theory, Section 512 of the US Copyright Law (often simply called “512”) might mitigate some of this risk. Congress enacted 512 to give online service providers some relief from liability due to copyright infringement committed by third parties. 512 could apply when the blog operator acts as a service provider for other contributors’ content, such as comments posted by blog readers or even guest-blogger contributions. If 512 applies, the safe harbor limits damages (and, in some cases, injunctions) against the online service provider. Thus, 512 could be the cornerstone of a blogger’s defense against copyright-infringement claims for third-party posts.

However, 512 is unlikely to be helpful in most coblogger infringement lawsuits. First, it is unclear when a blogger will be a “service provider” for other cobloggers. For one thing, cobloggers collectively may be deemed the “service providers” against third parties, but not against each other. Second, the case law interpreting the 512 safe harbors is mixed. Some cases interpret the safe harbor fairly narrowly. As a result, the safe harbors have proven less useful than defendants initially hoped. Finally, very few blogs will complete the list of technical prerequisites for 512 eligibility.

For example, one prerequisite is that defendants must register their web sites with the Copyright Office. However, based on my survey of Copyright Office records, very few blogs appear to have fulfilled this requirement. Without the ability to claim the 512 safe harbor and courts’ sometimes-expansive applications of contributory and vicarious copyright infringement, I think bloggers face significant copyright-infringement liability from coblogging.

A blogger who publishes a misappropriated third-party trade secret via the blog may be liable for the misappropriation. Partners or employers of the misappropriating blogger could be vicariously liable if the misappropriation occurred in the scope of the partnership/employment. To my knowledge, no published cases have addressed a web-site operator’s liability when a third party posts misappropriated trade secrets to the site. However, I think a coblogger’s risk of liability is comparatively bounded. At minimum, a blogger should not be liable unless he or she knew about the misappropriation. Further, a recent Ninth Circuit court case suggests that third-party liability for trade secret misappropriation may be covered by 47 USC 230 (discussed below).

Beyond copyright and trade secret, all other liability arising from cobloggers’ blog posts falls under a provision in the US Legal Code, 47 USC 230 (sometimes called “230”). Under 230, a party generally is not liable for wrongful content posted by someone else. For example, if a guest blogger publishes a defamatory blog post, 230 should absolutely insulate all cobloggers from defamation liability — regardless of the cobloggers’ knowledge, editorial role or financial benefit from the publication. Further, 230 typically ends the lawsuit on a motion to dismiss, making the lawsuits comparatively cheap and quick to defend. Clearly, bloggers will want 230 immunization for their cobloggers’ activities.

However, there are several situations where a coblogger might not be able to claim 230 protection. The provision applies only when “another information content provider” provides the content in question. Even if a blogger edits or obtains ownership of a third party’s content, the content still should be considered to have been provided by another information content provider so long as the third party had any responsibility for developing the content. However, if a blogger employs the coblogger who publishes such content, then the bloggeremployer may be deemed to be the information content provider him/herself.

The same result probably occurs with publications by those engaged in a blogging partnership; in that case, the blogging partnership may be deemed the information content provider. Thus, 230 may not provide any insulation for tortious publications by employees and partners. I expect plaintiffs will allege partnership and employment relationships among cobloggers as a way around the otherwise-terminal effect of 230 on their lawsuits. As a result, depending on the nature of the coblogging relationship, the potential loss of the 230 defense exposes bloggers to significant unexpected liability.

Solutions and Recommendations

We’ve discussed the law as it applies to coblogging and identified a number of areas where default rules are unclear or will lead to unexpected results. Now we take a look at some possible ways to address these problems.

Many bloggers will enter into coblogging arrangements without doing any preparation, naively assuming that they can always work out any difficulties with their coblogger friends — failing to consider that friendships change, friends die, and third parties may seek to impose an unwanted characterization on all cobloggers. A better approach would be to structure a private arrangement between cobloggers using either limited-liability entities or coblogging agreements. Each has its own pros and cons.

Cobloggers can operate the blog via a limited-liability entity, such as a corporation, limited liability company or limited partnership. In this case, the entity would own all of the blog’s copyrights and trademarks unless the parties agreed otherwise. Also, the limited liability provided by the entity may protect the bloggers from personal liability for cobloggers’ blog-related activities. However, these benefits come at some cost, including upfront costs to form the entity and ongoing costs to comply with tax and reporting obligations. The entity also must comply with certain formalities to maintain its limited-liability status, and these formalities can be a hassle and potentially costly as well. It may be hard to justify these costs when they exceed the revenue generated by the blog (likely the case with respect to many/most blogs). Also, to the extent that the entity’s equity is tied to blog participation, additional complications can arise with the arrival of new bloggers or the departure of existing bloggers. These situations may trigger a reallocation of equity, which may lead to thorny and emotional discussions about the fairness of existing equity or governance allocations, and there may be outof- pocket costs to document any ownership changes. In addition, these transactions may require real cash to move among the bloggers (for example, payments from incoming bloggers to buy equity; payments to departing bloggers to buy their equity), even though there may not be any clear exit strategy or other way to recoup these cash payments.

An alternative to forming a limited liability entity is for bloggers to enter into a coblogger agreement. From a legal standpoint, this agreement will act as a partnership agreement if the bloggers intend (or are deemed) to be in a partnership. Otherwise, the agreement will be between independent contractors. A coblogger agreement offers several benefits over formation of a limited-liability entity. First, the agreement can easily be customized (within broad public-policy limits) to fit the bloggers’ particular situation and preferences. Second, a private agreement has low transaction costs: the parties will incur few (if any) upfront out-of pocket costs to create the agreement. The agreement may not require the parties to maintain any formalities, and the parties can easily modify the agreement at low/no cost to reflect changed circumstances. However, private agreements may not completely address bloggers’ needs. Most obviously, the agreement can allocate or eliminate liability among its signatories, but it cannot limit liability to third-party nonsignatories. Also, though the agreement may expressly state that there is no partnership or employment arrangement, such contractual disclaimers are not dispositive, and the arrangement could be characterized as a partnership or employment arrangement despite the parties’ preferences.

Whether a limited-liability entity or a private agreement is the better choice depends on the bloggers’ specific circumstances and goals. However, either choice is preferable to cobloggers doing nothing proactive to override the default rules.

With the nonchoice, bloggers potentially bet their houses with every blog post they and their cobloggers make, and bloggers remain at risk of being blindsided by unexpected legal rules. Here are some other basic precautions potential cobloggers should consider before beginning a collaborative project:

» Bloggers should consider registering their blogs with the Copyright Office under 512, which may give bloggers some protection from copyright liability for the content of cobloggers and readers who post comments.

» Bloggers should deliberate carefully before generating revenues from the blog. The decision to make money from blogging is significant — it may lead to the formation of an implied general partnership (with numerous unexpected consequences) and may negate any coverage from the bloggers’ homeowner’s insurance policy.

» Bloggers must trust their cobloggers. No amount of legal prophylactics will cure a mistaken alignment with an untrustworthy coblogger.

The emergence of blogging has sparked an exciting new era of Internet communications. Bloggers contribute to important First Amendment ideals by expanding the marketplace of ideas and performing the watchdog function normally associated with the fourth estate. There is a lot of good activity taking place in the blogosphere. However, the news is not all good. Existing legal doctrines do not cleanly apply to blogging, raising the specter that socially beneficial and well-intentioned decisions by bloggers will produce unexpected and adverse legal consequences. Bloggers will need to get smarter about these consequences, but judges can mitigate the harshest by using their discretion to produce sensible and nonpunitive results.

ERIC GOLDMAN is an assistant professor of law and director of the High Tech Law Institute at the Santa Clara University School of Law in Santa Clara, Calif. This article consists of excerpts from his research paper, “Coblogging Law,” available at papers.ssrn.com/sol3/papers.cfm?abstract_id=898048. He blogs on technology and marketing law issues at blog.ericgoldman.org.