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.