Thursday, May 29, 2008

Who Has Comment Copyright Ownership In A Disqus Era

There is obviously lots of discussion about copyright around things like music and video on the Internet, but another area that is going to be very important that is only recently getting attention is the ownership of comments.

This issue came to the fore recently when Robert Scoble commented on a post from Rob La Gesse's blog. The problem is that Scoble commented using Friendfeed instead of the standard blog comments. La Gesse and Scoble had a discussion where Scoble wanted him to move the discussion to Friendfeed. La Gesse did not want to do that, and at some point deleted his feeds from Friendfeed. This prevented the discussions about his blog from happening on Friendfeed. Unfortunately, as Mathew Ingram explains, this had the effect of deleting from public view Scoble's comments on LaGesse's blog. Scoble was upset that his comments had been deleted because he feels like he owns his comments.

The details of this story are laid out in more detail in Ingram's account of the matter, but the whole discussion got me thinking about the broader implications of who owns the copyright to your comments. Does the blog owner? Do you? What about when one comment will be viewed and under the control of more than one party, as in the case of Disqus. For example with Disqus you have the ability to edit your comments. And in some sense when you add a comment you are building a site for yourself (your collection of comments) and you are contributing to someone else's site.

In the past this was not much of an issue as blog sites have historically not given commenters much control after they hit the return key. And so the intuitive assumption though not necessarily the legally correct one, is that the blog owner owns the comments on their blog.

In fact though, copyright law gives broad protection to content creators, regardless of where they create that content. Certainly it makes sense intuitively that the blog owner would own the comment, but that may not be accurate legally. In order to perfect such ownership rights, it seems clear blogs really should have either terms of service that the commenter has agreed to, or a notice above the comment entry area that states who will own the comment being entered.

Since no blog platforms that I am aware of provide a mechanism for clarifying comment ownership rights, it seems to me that at best this issue is legally unclear, and at worst the site owner might only have the right to use and display the content in the very specific context in which the user placed the comment. So if, for example the blog owner wanted to use the comment on another site, or to reconfigure his blog in some substantial way, that might, theoretically require the permission of the commenter.

While it is unlikely a commenter is going to sue a blogger over something like this, at least in the short term, the lack of clarity is unnecessary and will at some point cause trouble for someone. Services like Disqus and IntenseDebate make the issue more complicated because they clearly provide control and display rights to two parties, the commenter and the blog owner where the comment is made.

This is a complicated problem with a simple solution. I would like to call for all comment systems to provide a mechanism to clearly indicate to users what rights they have and what rights they are giving out when they write a comment. Specifically, all that would be required is some clarifying text above the comment editing area or in a confirmation dialog box. This would be simple to do since a small number of blog/comment platforms handle most of the comments on the Internet including Google (Blogger), Wordpress, Typepad, Disqus, and IntenseDebate.

I would strongly suggest these major players address the issue, since right now we are in a comment copyright no mans land, and that can, over time, only lead to trouble.

65 comments:

  1. There's also Libel to consider. If I wrote something libellous, like, oh, Tony Blair is a war criminal, who is at fault? me for saying it, your for publishing it, blogger for not deleting it? Next; where is the liability? Here in the UK, in the US, or wherever the google servers live?

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  2. Wow. That is a really interesting point. If the blogger owns the comments does s/he also own the liability?

    ReplyDelete
  3. The greatest challenge here is self responsibility. You can only be responsible for what you write. If conversation results that is defamatory / illegal (in any way - pick your favorite) the person from whose keyboard those thoughts emanated should be the person who is held responsible.

    Not sure the last time anyone stepped up and took personal responsibility so I am know I am speaking to deaf ears here ... but it is the right (and simple) answer.

    ReplyDelete
  4. UK libel laws allow you to sue anyone who who says or distributes anything defamatory that they cannot prove (notice where the onus of proof lies).

    You may sue the owner of the site, the person who made the comment, the hosting provider. You may sue the author of a book, the publisher, or any shop that sells it.

    This means British web hosts pull any site that is alleged to by libellous (Alisher Usmanov shut down Craig Murray that way).

    It also means that many foreign plaintifs bring cases in the UK because it is easy to win. This is called libel tourism, or jurisdiction shopping. A good example: Khaled bin Mahfouz sued Rachel Ehrenfeld in the UK (and won) even though only 23 copies of the book in question (Funding Evil) were sold in the UK.

    If anyone in the UK views your blog, you are subject to the full weight of British Libel law.

    ReplyDelete
  5. I believe the commenter owns copyright to his own comment and the blogger owns the site.

    The blogger may be restricted in editing comments, or moving them out of context, but the blogger definitely has no obligation to store and display those comments. Copyright does not include the right of existence.

    If the commenter cared enough, he would incur the costs of storing and displaying his own comments.

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  6. Conventional wisdom says that, when it comes to a discussion forum, the owner has a license to reproduce a comment in the context of the discussion. Some (like me) prefer that to be an irrevocable license, since removing a comment distorts history.

    At any rate, the blogger definitely doesn't *own* the comments... if she does, then she's not gonna qualify for the CDA's safe harbor provisions.

    ReplyDelete
  7. Hank, interesting thoughts.

    I especially like the idea of a disclaimer so that readers know what to expect.

    Disqus officially claims that blog comments on Disqus are owned by the blogger: http://disqus.com/help/#faq-5

    Personally, I think readers should have more control over their comments, but if the blog owners expect to have complete control over what's on their blog (including the comments), they should let readers be perfectly aware of that.

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  8. Why don't you take the first step and include a block on your blog explaining the ownership of your comments.

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  9. Just so you know, we're talking about your post here.

    ReplyDelete
  10. Just to correct your facts a bit - I was NOT concerned that Scoble was talking about my post on FF. And he DID comment on my blog. They he Twittered and told me to move the conversation from my blog to FF. I told him that I would have the conversation about my post on my blog, not on FF. The comments on my blog post (over 80) outnumbered the FF comments 10:1.

    Also - I did NOT delete my FF account. OR any comments on FF. I just removed my feeds from FF.

    FF still has the comments (they say). But without my feed they have no context in which to display said feed. And at no time did they warn me that said comments would disappear. In fact, they have since stated that they hadn't planned for such an occurrence.

    In any case, the FF team will be on the Gillmor Gang tomorrow. And so will Robert Scoble, I understand. I am not sure if I will be invited to attend, but if invited, I will.

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  11. This is something I've never thought about, even though I often leave very long, thought out comments on blogs, and encourage commenting on my own. I'm not sure of the legality of anything discussed here, as it is not my forte. I think maybe I should add a link to some kind of terms of service on the commenting portion of my blog, but then- I don't even know what I'd put in it or if it'd make these muddy waters any clearer.

    I'm sure this will come up in some kind of court/legal case eventually. And I'm also sure that matters will be even less clear cut when it does.

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  12. @ - celes - I do have a Terms of Use page on my site that has stated my comment policy for almost two years.

    Basically it says, "This blog, and everything on it, including comments are my property. Once you leave a comment, you have left it. It then belongs to me."

    I'm not sure what the legal merit is of that statement, but at least people know where I stand on the issue :)

    ReplyDelete
  13. A comment, or article, or something else I read stated that the real issue about intellectual property rights, specifically copyright, was that it was based on the concept of real property instead of taking into consideration that multiple parties depend on the IP in different ways.

    While books, artwork, poems, etc. seem fairly straightforward, ownership of comments does seem questionable.

    Practically, this seems like a waste of time. What responsibility is it of the blogger to maintain someone's comments? There would seem to be some tacit understanding, if not agreement, that the blogger has full control over the blog (i.e. banning people, turning off comments, deleting comments, etc.). If a person wanted their comments kept under their own control they would post them on their own blog, or use a service that provides them with more control. ©

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  14. First of all: LOVE your blog title.

    Just because you 'own' the copyright to your own comments doesn't mean that I have to pay to host your comments forever. La Gesse's deleting his FriendFeed feed has nothing to do with infringing or impinging anything of anybody else's.

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  15. Rob,

    I made some changes to reflect your comments. I hope this helps.

    ReplyDelete
  16. I have a clear comments policy that lists rights - there is no way a comment service is going to be able to cover everything with all the possible variations.
    I retain rights to publish, but at the same time state that comments cannot be used as a testimonial on my site or elsewhere.

    I honestly hate when I leave a comment somewhere and it ends up on someone's sales page, out of context.

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  17. There are lots of pronouns in that 2nd paragraph so, just to make sure I've got it straight, are you saying that...

    "Scoble was upset that [Scoble's] comments [on La Gesse's blog] had been deleted [from La Gesse's blog] because [Scoble] feels like [Scoble] owns [Scoble's] comments"?

    This interpretation may seem the only sensible one, but it makes such a nonsensical inference on the part of [otherwise smart] Scoble that I feel compelled to entertain the possibility that I've missed a cue, here.

    Of course Scoble owns Scoble's comments. And La Gresse owns La Gresse's blog. And La Gesse gets to decide which comments get to be posted on his blog, just as Scoble gets to decide which comments stay or don't on HIS [Scoble's ;)] blog.

    Surely this is not in question by anyone -- is it?!

    To the larger question (who owns comments), while I would maintain that it's obvious that *I* own this particular comment (although you're free to keep or trim it from your blog), it also seems quite obvious to me that I have "published" it (by offering it up to your blog) and it can certainly not be considered my "secret", or anything similar.

    Hence, I said "foo", and you might say "in the words of Ted: 'foo'" or "Some guy once left a comment on my blog saying 'foo'", I think it'd be awfully weird if someone were to suggest that they saw you stand up on stage and spout "foo" as if it were your own original thought (perhaps without saying so, but also without crediting the idea) and that I should ...what? ...Sue you or something?!

    What if the guy who coined "disqus" decided he wanted a nickel every time someone used his new word. I do believe we'd collectively tell him where to take his flying leap... ;)

    This just strikes me as a total non-issue, is all...

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  18. Ted,

    Yes, you have it right. By the way I tried to clear up the pronoun situation a bit. It happened because Rob Le Gesse said I got some facts wrong and I wanted to fix.

    The bigger issue is what do I have the right to do with your comment. Can I republish it in a different form? For example if I were to restructure my blog in some significant way would it be the same blog? Would I have the same rights? What if I made it a porn blog for example. If I get you to agree that I have a full license to use your comment (as many user generated services get you to agree too) then I don't have to worry. Otherwise the fact that there is a gray area means there is an opportunity for people to disagree about what is right.

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  19. Chi-chi EkweozorMay 29, 2008 at 7:37 PM

    You are right in inferring that there is a storm brewing over this.

    I believe that the comment copyright belongs to the commenter but the Terms of Use for my company blog state that the commenter grants the site a licence to use any material posted on the site. So I'm in agreement about the need to inform site visitors about who eventually *owns* their comments.

    I have an issue with third party commenting systems that prevent use of comments on the originating blog after they are uninstalled.

    We recently lost all the comments posted to our blog using Disqus after we uninstalled it. Big ouch.

    A very interesting post. Thanks.

    ReplyDelete
  20. Get that can-opener away from that guy, that's worms, Man!

    Definitely, for implications and potential impact of sneaky laws having to do with copyright, in the context of comments, look up the proposed Orphaned Works legislation that looms as we speak.

    The bill would require all to register works at a (for profit) registry, conceivably including comments; or a later bill (or rider?) modeled on this one could include 'orphans' like comments, most definitely.

    Not good. Well, it's definitely worth checking out in the context of this article if you're really interested in this subject and where it could go, such as the stifling kind of impact laws of this sort could actually have. Public Knowledge has a good thread on this, with links to pro/con letters addressing the proposed bill from historical documentary producers, for example, on government file.

    -IF- you're interested, you may request to be added to this email list for info about the Orphaned Works legislation from Illustrators Partnership:

    illustratorspartnership@cnymail.com

    (maybe one or two emails per week)

    It appears this bill only addresses visual art, but the precedent it would set suggests broader implications.

    Here's the url they set up, there's more explanation there under 'issues':
    http://capwiz.com/illustratorspartnership/issues/?style=D&

    I'm not with the IP btw, just interested, concerned, whatever.

    Crowings

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  21. Barring a work for hire relationship (virtually never applicable) or a contractual relationship memorialized by a written assignment with all of the attendant formalities, the commenter retains such rights.

    For the life of me though, why would a commenter really care>

    ReplyDelete
  22. nobody really owns anything. never did, never will, merely has curatorial custody on a temporary basis ...

    the web is whacking away at space and time, even the temporary basis is going to disappear ...

    like with privacy issue, have to adjust to a new reality

    ReplyDelete
  23. Hank

    you've started a great discussion

    the disqus guys have responded with a strawman commenter bill of rights

    go check it out

    http://bigheadlabs.com/~daniel/draft/acommentersrights.html

    Fred

    ReplyDelete
  24. Thanks Fred.

    And I will indeed check out the bill of rights. It sounds very promising.

    Hank

    ReplyDelete
  25. I agree that it's important to question comment ownership, especially if you look at the terms of service for sites like Reddit. With that in mind, when I hand-rolled a blog platform, and one of the things I added was CC-SA/Attribution licensing on comment submission with the name/email/link as the attribution.

    ReplyDelete
  26. The concept of brand personality comes from the customer view of a corporation as an entity and do not see it as the collection of dozens, hundreds, or thousands of unique individuals, all with diverse opinions and ideas about what should be done and how. The company processes are in place to keep that behind the curtain, to preserve the perception of a collective brand entity.

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  27. Hank,

    Very interesting, thought provoking post. It would seem to me that who "owns" the comments on a blog is murky, but one would think that it is either the author of the comment, the blog owner or a combination of the two, certainly not a third party such as a comment replacement system. This, along with several other related factors such as SEO implications and loss of control are reasons why we believe all of the functionality provided by a comment replacement system can be provided through an augmentation strategy instead of replacement.

    tedd at sezwho.com

    ReplyDelete
  28. Ted,

    Thanks for the comment. I will say one of the things I like about the comment replacement concept is the idea that comments are no longer associated with the blog and are therefore more portable. Of course I still do want SEO as well. But I most of all want full blog portability.

    So on another note, with sezwho, can I see all of my comments across multiple blogs in one place?

    ReplyDelete
  29. @Rob La Gesse

    "
    I'm not sure what the legal merit is of that statement, but at least people know where I stand on the issue :)"

    It has no merit and goes actually against the copyright law. Unless you pay the people to comment (and they are then work for hire), they retain full copyright of their own comment.

    The only recourse you have is to have a disclaimer that people have to agree to to post, that they give you a perpetual license irrevocable to reproduce their post and allow distribution of their comment.

    Just look at any recent forum, look at their EULA, you will find such a paragraph.

    After that, whether you keep the post or not online, is only at your, as a license to distribute does not imply you are FORCED to distribute.

    ReplyDelete
  30. there is a deeper truth than copywrite, which 2.0 is ushering in .. copywrite is based in old paradigm protectionist thinking, based on scarcity, and now, nothing is scarce

    never was, either,

    and a mystic would say, we own nothing... 2.0 is approaching that higher understanding

    but look at this blog... still using stupid blogger instead of discuss , ridiculous

    ReplyDelete
  31. ha, copywrite and copyright ... you know, they are both based in the same old thinking...

    ReplyDelete
  32. Hank,

    I'm unclear as to what you mean when you say that comment replacement systems make comments "more portable" . Do you mean more accessible and/or aggregated?

    Our objective at SezWho is to leave comments in the places where they were originally submitted, thereby maintaining SEO and all the other aspects of leaving user generated content in the place where it was originally submitted. We provide a profile where we provide links back to all the contributors comments in a single profile. In fact, this profile is not just about comments. SezWho provides links to all user generated content - blog comments, blog posts, forum contributions, tweets, and soon pictures and video.

    ReplyDelete
  33. tedd,

    By portable, I mean I want to move my content from Blogger to wordpress for example.

    for a fuller explanation see:

    http://whydoeseverythingsuck.com/2008/05/disqus-and-profy-first-step-to-totally.html

    ReplyDelete
  34. Hank,

    OK, I understand. In theory then a comment replacement system should make the comment portion of your blog "portable", but as discussed in your post, the real test is whether it works in practice. From what I've seen so far, exporting comments from a nontrivial blog and then importing into available comment replacement systems and vice versa is difficult at best. Furthermore, as you mentioned, this only partially solves the problem of portability - the actual posts and other features, plugins, etc. must also be addressed...

    btw, sounds like we need to take a closer look at profy.

    ReplyDelete
  35. hank i am getting spammed through your comment system, long lists of links ... you better switch to disqus

    ReplyDelete
  36. Great points! I'm pleased to be your newest subscriber on reading this. Enjoying poking around your blog!

    ReplyDelete
  37. From what I've seen so far, exporting comments from a nontrivial blog and then importing into available comment replacement systems and vice versa is difficult at best. Furthermore, as you mentioned, this only partially solves the problem of portability - the actual posts and other features, plugins, etc. must also be addressed...

    ReplyDelete
  38. The biggest problem I have with Disqus is they aggregate comments into a profile regardless if I agree with it or not. They do this without disclosure prior to commenting on a blog that utilizes the service. As great a feature as it may be for blog moderators, it is not fair to unwitting commenters. Further, the CEO told me that comments are unclaimed unless they are claimed by registering on their site implying that no one owns their comments and that his company is free to scour the internet and collect comments without reimbursing the owners. I agree there are some serious copyright and privacy laws at stake here. I swing copyleft on a lot of issues, but this is just beyond reasonable. At this time I will cease commenting on blogs that use Disqus. It is a great way to kill the intense debate.

    ReplyDelete
  39. hey guy boo copyright !!! copyrights are really only good for the large company's to own the rights of stuff they never made or created!
    thanks http://www.rateyourtrip.com good
    ps maybe just refine the law a bit

    ReplyDelete
  40. i'll be goog blog and i contineus this blog thank you master

    ReplyDelete
  41. The blogger may be restricted in editing comments, or moving them out of context, but the blogger definitely has no obligation to store and display those comments. Copyright does not include the right of existence.

    ReplyDelete
  42. In fact, this profile is not just about comments. SezWho provides links to all user generated content - blog comments, blog posts, forum contributions, tweets, and soon pictures and video.

    ReplyDelete
  43. It has no merit and goes actually against the copyright law. Unless you pay the people to comment (and they are then work for hire), they retain full copyright of their own comment.

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  44. Proving ownership of comments in the blogosphere will be practically impossible to achieve. Great post

    ReplyDelete
  45. This comment has been removed by the author.

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  46. I read an article today that talked about copyright when it comes to Twitter. I think that when it comes to blogs, once you post the owner of the blog now has copyright.

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  47. How would this effect (say) in a public chatroom, somebody makes a comment that then gets added to Twitter - with no warning, and no permission, and neither is there any clarity on the context to what was actually said.

    Surely a chatter would own the rights to what he/she typed into the room - even if it is a public room. If this is the case, is it legal to publish said comment/statement?

    I just question the legality is all - I'm not asking what can be done about it.

    ReplyDelete
  48. Copyrighting is the process of protecting ones intellectual published or unpublished work. so everything which you feel like it should not be copied by other then it will help you by Copyrighting it.

    ReplyDelete
  49. I have to admit, I haven't heard of this issue before. Internet piracy is a growing controversy lately and authorities are still having a hard time conquering this problem. It is still in its baby steps.

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