Bloggers’ Legal Defense Society

Bloggers’ Legal Defense Society

: We need all the many blogging lawyers to band together to provide legal help for their fellow bloggers. Said it before, I’ll say it again now.

The latest case: Jason Kottke did some great reporting and posted audio and then a transcript of Ken Jennings’ loss on Jeopardy, the worst kept secret in Hollywood this side of Michael Jackson’s weirdness. Sony lawyers contacted Jason, first telling him to take the audio down, then telling him to take the transcript down (even though the same details were reported in the Washington Post). Now Jason — a pioneer in this ‘sphere, a damned Davey Crockett of blogging — is thinking about giving up the blog. He’s feeling the chill.

You’ll all remember when Robert Cox felt a similar chill from The New York Times’ lawyers until (a) he got some help from pro bono lawyers from blogs and (b) saner souls prevailed at The Times and they came to a swift and civilized agreement. Nonetheless, we know that Robert, too, felt the chill. We all do when lawyers descend upon us. Civilians can’t afford the fight. And that’s just the point, of course.

So we need our own lawyers.

Anil Dash, Tom Biro, and Steve Rubel, three good gentlemen of this space, have written about this and there’ve been suggestions about starting a blog industry association, which was discussed at Bloggercon II and which might be a solution. But I think such a group has other jobs on the business front (setting ad standards, setting measurement standards, getting data on the blog world, selling the wonders of blogs to marketers).

In this case, I think there is a very specific need: Jason and Robert before him needed to tell the lawyers calling him to “call my lawyer.”

Of course, bloggers can’t afford lawyers of their own. But we know from Robert’s case there there are a good number of good souls with legal degrees out there who are willing and eager to help.

I suggest that what we need now is a means of organizing them so a blogger who’s getting harassed by big corporate or government attorneys can call for help. In some cases, the lawyers may say that the blogger did something wrong. But in most cases, the lawyer can breath fire back at the corporate dragons and skip the harassment stage and get right to the civilized discussion and agreement stage.

We also need to know about these cases so we can publicize them.

And I will still beg these same attorneys to put together a curriculum on legal rights and responsibilities for bloggers so folks who don’t have corporate attorneys behind them can know what’s what.

Finally, we also need to see about getting some group-rate libel insurance for bloggers.

Note also that we’re going to need legal help the first time bloggers face challenges under shield laws, for Freedom of Information Act requests, for access to government, and so on.

So, I urge, beg, cajole, wheedle, and whine hoping that a few good blogging lawyers will step forward to found the Bloggers’ Legal Defense Society.

I suggest we need:

1. An organization. Somebody needs to put it together. That somebody needs to be a lawyer and/or law professor. You know who you are!

2. A wiki or equivalent where lawyers can sign up, listing their specialties and agreeing to get emails (or RSS notification) of a bloggers’ distress call. Plenty of folks could set that up.

2. A means by which bloggers can post their problems. The lawyers will be notified so one or more can volunteer to help. Bloggers should monitor this so we can publicize deserving cases (because PR is just as powerful a weapon).

3. Curriculum on legal rights and responsibilities, including libel and copyright. Also a wiki so no one has to do it all.

4. A volunteer to find and negotiate a group rate for libel insurance.

5. Contributions and a means to accept them (which means this needs to be a 501c3, eh?).

Volunteers? Please? The future of citizens’ media depends on this.

Today, the cause is merely Jeopardy. Tomorrow, citizens’ media could be in jeopardy. Let’s act before it’s too late.

  • Richard R

    I think there needs to be one more element – subscriptions.
    Think of it as an insurance policy for blogging. Distribute the risk. For $5/month you have a lawyer that will represent you for all blog related matters. 99% of bloggers will never need a lawyer, and the rest will need one once in their lifetimes. That makes for a big war chest.

  • Great idea. I’m still in law school, but when I’m out… sign me up.

  • I’m not sure that Kottke is a good poster-boy for bloggers engaged in battle with The Man. He posted some audio from a TV show before it aired, material to which he had no copyright. I’d be hesitant to support a legal defense fund aimed at supporting that kind of behavior.
    There was once upon a time supposed to be a book of blogger reactions to 9/11, and its proceeds were supposed to fund a bloggers’ club. That never happened, but maybe it should, with the proceeds going into a fund to protect bloggers from frivolous legal harassment.

  • Ho-Hum

    Dude, you’ve totally gone off the deep end with your blog fetish.
    Seriously. Step back for a second.
    I know this mindset has already earned a variety of descriptions during the past couple of years — “hubris” and “triumphalism” are two of the big ones — but “delusional” and “losing-grip-on-reality” might be worth adding to the mix.

  • Ho-Hum

    My comments were addressed to Jarvis, just to be clear.

  • So, Bennett, we meet again.
    The show actually *had* aired by some affiliates before Jason posted his clip. And journalists don’t need permission to excerpt a work while reviewing it or reporting on it. Not to throw *too* many facts into the mix, this being a blog and all.

  • Jeff, an outrageously excellent idea and something that, obviously, could not come a second too soon.
    Also, Richard, the idea of a distributed group umbrella policy is something that I think should also be pursued.
    There are lots of little issues around both of these I know, but this sort of thing could be invaluable in levelling the playing field between the soul-less profit-driven corporations and the fans and customers they not only created but seek to control.

  • Jarvis is a bit of a nervous fellow, but he’s sane enough, and this is not hysterical hype. We have actually been pretty lucky here so far in the States.
    I hate to beat a well-worn personal drum, but there are places with crazy, fupduck libel laws that can eat a blogger for lunch and leave no traces. It’s happened to a couple of Brazilian bloggers I know: domains shut down because of the content of a reader-submitted COMMENT, or because the blogger was a journalist publishing a story on his own dime that his editor censored. And I know for a fact that there’s a push in that direction here in the USofA; ask the Metafilter guy. Seriously, there are armies of lawyers sit around doing nothing but scheming on how to make this kind of trouble for people who might cause downturns in the value of brand equity.
    So I’m with the wise and far-sighted Jeff: some of the things people do with their blogs are rather unique in light of our evolving media law, so it’s only wise to keep an eye out for cases that set dangerous precedents that could seriously cramp the blogging style of the rest of us down the road. It’s not like the FCC is censoring billions of teenagers’ blogs that question the value of abstinence education, but it only takes one to set a precedent.

  • Hmmm.
    Volunteer here. No specialities at all (PolSci college student) but willing to devote time over winter break. Tell you what, suggest a domain and I’ll pick it up and get a wiki together etc. and then–in a few weeks, when the steps to becoming a 501c3 etc. are laid out–if the pros see merit, they can step in.
    Like I said, I have no special skills–at all, so if someone else feels like starting it instead, go ahead–but this is the kind of situation where everyone agrees it’s a good idea but nobody gets the ball rolling.
    Not sure how the idea of insurance and the condition of being non-profit don’t conflict, though. Libel is *really* tricky and messy.

  • Ho-Hum

    Colin writes that lawyers are eager to make “trouble for people who might cause downturns in the value of brand equity.”
    Gee, that’s horrible! Somebody with a stake in something wants to defend that stake. A company wants to prevent downturns in the value of its brand. Can you believe it?!
    If you’re going to bemoan a company’s eagerness to maintain and expand its power, then I presume you’re willing to join me in bemoaning the blogosphere’s eagerness to maintain and expand its power, as I did a few posts up.

  • BTW, I seriously think the most powerful aspect of this proposal is the “call my lawyer” line. Seriously, most people are just caught unawares, and if the whole idea (sounds like an ACLU or EFF for bloggers) doesn’t quite pan out, at least something foundational may be established.

  • Dexter Westbrook

    “Journalists don’t need permission to excerpt a work while reviewing it or reporting on it.”
    This is not true when the work hasn’t been published/aired. The AP, for example, was threatened with a lawsuit by the publisher of Hillary Rodham Clinton’s autobiography when it published a story about the book’s contents before the book itself went on sale.
    If Mr. Kottke wants to violate copyright, fine. Let him do it on his own dime.
    These types of copyright infringements can screw up “official” deals to excerpt works in other publications, e.g. Newsweek agreeing to excerpt some book in advance of publication.

  • Sony has been known to be very protective of their material. As a game show geek, I remember years ago when a Hollywood Squares page was opened with streaming RealAudio clips of past shows. Sony forced the owner to shut the page down with repeated legal threats. Yes, it’s copyrighted material — but if it’s not downloadable and basically acts as free advertising for the property, it seems as if the copyright owner is cutting off their corporate nose to spite their face. (Or something like that.)

  • You don’t need all that crap, Jeff. Here’s how you handle these types of threats. Tell them to eff off. If they don’t follow through with an actual lawsuit, odds are you’re the one who is right on the issue and if they do go through the trouble of filing a lawsuit then you are the one who is more than likely wrong.
    One other thing. Blogging is not a license to steal copyrighted material.

  • McClelland: Huh? You know the whole takedown notice idea was supposed to be a compromise so ISPs could avoid lawsuits, yeah?
    I really don’t want to wait to be sued before I can decide whether I have a good fair use claim!! Being sued sucks badly. It screws up your life if you settle or lose or are otherwise assigned guilt for copyright infringement.

  • Joey

    I basically agree with Robert McClelland, but here’s how I would do it:
    (1) If you get some sort of threatening e-mail, respond with your snail mail address and ask for any communications to be sent there in writing, saying you don’t respond to legal issues by e-mail.
    (2) When (and if) the cease-and-desist mail arrives, respond asking for details about the legal theories, laws, etc., that they are basing their claims on. You can ask for references to sections in a hornbook for the area if the claim is common law based, or for statutes if not, apologizing for your lack of legal sophistication (and leaving your site unchanged for now).
    (3) Still communicating by postal mail, if you are not getting detailed explanations of their legal claims, suggest that they go ahead and file their complaint in court (so that you can read their specific legal claims–they can’t spew vague bullshit in a complaint). Helpfully inform them that they can serve you with the complaint at your postal address, perhaps telling them the times of day you will be home to accept it.
    Most threats peter out somewhere along the line if you follow these steps. A good example are the Weight Watchers threats against those publishing self-computed “Point” values for food. If you look around the web at the sites that have been threatened, the ones that have stood up to the claims of trademark and patent infringment have eventually been left alone, albeit with a “we’re continuing to keep an eye on you” parting letter from the lawyers.
    If they do file a complaint, you either need to get a lawyer at that point, or file the answer yourself. At this point they maybe have spent a hundred bucks in filing fees plus the lawyer’s time, but it will escalate seriously for them from now on, so if you file an answer, even self-written, they may still give up at this point and withdraw their complaint.
    Incorporating your web site is also a good idea. It costs only a few hundred dollars and a couple hundred dollars a year in various fees. You need to file a simple annual tax return and pay all ISP bills and the like from a separate bank account funded with a few thousand dollars (receiving AdSense and Blogads revenue there also), and document everything you do relating to the “business” of the website in a notebook as corporate resolutions. If you do this right, only your corporate bank account should be at risk if you lose a lawsuit, although it might be a good idea to “brand” your blog with a name other than your own, list yourself as an officer of the corporation and chief editor on the blog, and sign all postings in your corporate role of “editor” rather than simply using your name.

  • I really don’t want to wait to be sued before I can decide whether I have a good fair use claim!!
    These companies are not interested in pursuing these matters against little fish. So if they are serious about the lawsuit, they’ll back off once you do what they ask. They aren’t out to get people nor are they out to make an example of some guy with a website because if they pursued the matter after you gave in, it would only reflect badly on them.
    Of course, I should add that it’s only best to do this when it’s not clear if you’re doing something wrong. In the case Jeff brings up, the guy is clearly in the wrong.

  • Very minor point at this stage of the planning, but here goes:
    Jeff Jarvis writes,

    which means this needs to be a 501c3, eh?

    I’m not sure about that. Could be that a 501(c)(6) or one of the other 501(c)(something)s is more appropriate. Relevant IRS info here.

  • Ry Rivard

    Perhaps we need something much broader, like a Blogger’s Guild. A small non-profit to, as you suggest Jeff, provide legal defense, but also to lobby for legislative protection.
    While it seems that a _network_ of independant journalist defeats their independance, we already have an informal guild forged by hyperlinks, why not one by legal aide and mutual protective objectives.
    Obviously the range of issues must be narrow — there’s simply too many voices (the very rub of the blogosphere’s success) to agree on a Blogger Guild advocating off-topic social changes like other guilds and unions often do — the limited issue range should be:
    1. Legislative advocacy for protections, re: Volokh’s piece in the 12/2 _Times_
    2. Judicial representation, re: Kottke
    3. A continued, general vigilance for First Amendment rights
    4. and, probably the least needed, a group to examine the technologies of blogging, i.e. trackbacks, feeds, etc.
    The first two are most needed, the second are most akin to the work of the EFF and the W3C, but neither of these orgainizations’ work are specific to bloggers.
    As far as membership, $5 seems fine, but defending the non-member, presumably ever more defenseless, should be priority, too, and pro bono.
    P.S. If anyone wants to move forward on any of the points, even Jeff’s general initial suggestion, I’m certainly willing to help so far as I can.

  • Tom

    Irrelevant of if Kottke is right or wrong in this particular case, something like this needs to happen. To back up Anil’s statement, the show actually ran on Friday, I believe, on at least one station.
    Also – no newspapers who ran with the story – the Washington Post being one – seem to have removed the materials from their websites. And they actually ran it on the 30th, the day the episode was scheduled to air. This seems to be a clear double standard – especially when Kottke was asked to remove the audio….then the text later on.

  • Given the importance of first-line defence (again, the ‘i’ll first consult my lawyer’ issue), I don’t see why we need to sit around waiting for someone to chip in pro-bono. If there are enough members, we can easily offer some lawyer the majority of membership fees for upto (say) five hours of consulting/month. Get into a legal issue, let the organization know, they quickly consult with said lawyer about what is advisable. Of course, this is something that will be need to agreed upon in immense detail, especially because of legal liability and issues of representation and confidentiality etc., but it can be done.
    I don’t realistically expect a bunch of pro bono types to line up and actually take on cases, but anything’s possible, I suppose.
    As for needing to happen, this can definately happen. I’m just waiting to see if Jeff would prefer that a lawyer take the initiative instead of Ry and me and suchlike (that may mean waiting around for a generous soul for a while, though.)

  • I have already offerd to be of as much support as I can to Jason and to Jeff’s call to arms.
    Keep in mind that implied behind the idea of libel insurance (which has been raised before) is the requirement for a set of standards. An insurance company will be happy to sell us insurance all day long with no problem. Getting them to actually pay a claim is a different matter.
    The only way this works is…
    – you have a fairly large organization
    to lower the average cost of insurance
    – there is a code of conduct for members
    – applicants are screened to weed out high risk candidates
    – there are real consequences for failing to adhere to the standards to avoid negative self-selection; irresponsible members will want/need the insurance most and will be the greatest cost to the group.
    Now, if the idea took hold and the group got pretty big you could self-insure and hire a company to administer a self-insured program.
    More later….

  • ErikZ

    I sell “pre-paid legal”. 26$ a month gets you 70 free hours of courtroom defense in the first year, and you build up more after that.
    Is there a reason this isn’t a good option?

  • Good ideas here, but don’t forget the international aspect please. I got contacted by an American based company several weeks ago about something I wrote on a forum. I don’t think they had any ground to stand on but it scared the shit out of me nonetheless.
    At the time I was 17, and my parents have legal insurance, but now I’m 18 and as far as I know I don’t have legal insurance (but it could be that it’s in the package I have, not sure, my parents are paying that).
    I think this is a great idea, and we really need this, if only as a way to be taken more serious by companies. And, therefore, it needs to be international.
    (For the record, I’m Dutch.)

  • Pollie Anon

    Follow the McClelland theory to its end and no defendant would ever win a libel suit in court.
    And while we’re at it, why exactly is it that this marvelous theory only applies to libel?

  • I’m really glad this issue has been raised, irrespective of whether Kottke was right or wrong. I like Jeff’s suggestions, but I definitely think that some kind of fund is needed to get anything like this on the road.
    But for a start it ought to kept as simple as possible.

  • I can’t offer any technical or legal support. But I have a few bucks in paypal that I’d be willing to donate, once there’s something to donate to.

  • Old Grouch

    Not quite on-topic, but here are some US-centric references that bloggers might want to bookmark:

    Reporters Committee for Freedom of the Press
    specifically, their

    First Amendment Handbook [HTML]
    Libel- Invasion of Privacy- Surreptitious Recording- Confidential Sources and Information- Prior Restraints- Gag Orders- Access to Courts- Access to Places- Freedom of Information Act- Copyright

    Reporters.Net Freedom of Information Resources Page

    U.S. Copyright Office article on Fair Use

    IUPUI Copyright Fair Use Checklist (Nice tabular listing of the issues.)

  • I totally agree that bloggers need some sort of legal support system to turn to when threatened as Kottke has been. But isn’t this what the EFF is for? Why wouldn’t that be at least the starting point for this conversation?

  • Scott, you of all people should know that the EFF is a self-serving organization that specializes in trivialities, which is why they haven’t already jumped on this issue of their own volition. Forget them.
    And after thinking about this stuff for a couple of days I’ve come to the conclusion that my number one priority for legal counsel relative to my blog would be to have somebody go after the comment spammers. They’re a bigger threat to the interactivity of blogging (and therefore free speech in the domain where blogs have a clear advantage over print) than Sony’s nasty letters.
    If you add up the hours spent by bloggers and blogware producers to control, eliminate, and generally manage comment spam you’d come up with a number that dwarfs the worst Sony and the RIAA could do in their wildest dreams.

  • Until you get a letter from Sony that is.
    Most bloggers make little or no money from their blog (Jason doesn’t have any ads on his) and aren’t going to pay for legal insurance.
    I agree with Scott that EFF or another existing legal organization would be the best way to do this. They already have the infrastructure and could have a pool of lawyers willing to work pro bono in addition to their staff. They could set a budget to fund the program and raise money through online donations, large donors (such as bloggers who get fined by the NBA), and grants.
    And remember, the AP was threatened with a lawsuit. They have lawyers and I don’t think S&S ever moved beyond threats. Jack Shafer wrote a good piece on embargo lawsuit threats.
    There was tremendous interest in when Ken Jennings would lose. Jason got a tip and broke that story. And he advanced the story by getting audio of Jennings losing.
    And Sony and the stations airing Jeopardy gained from the publicity letting people know when it would be on. The only difference was it wasn’t orchestrated by Sony like the Nightline story, the Letterman appearance, etc.

  • Amazing. Maybe someone should point this post out to Sony.

  • Thanks for raising this again, the more we hammer at it, the more something useful might result. Some noodling over here:

  • Richard Bennett, you’re obnoxious and wrong. The EFF is one of the most important–and useful–civil liberties organizations in this age.
    Scott, the EFF is a big-league organization and they’re surely don’t have time to advise on every legal threat, especially considering that they’re pro-bono (at least as far as I know). This organization would be complimentary, hardly trying to do what someone else already does better.
    Frankly, the insurance idea is a turn-off for me–if you lost a case, you lost, tough–but I’d really be interested in putting together group prepaid legal counsel. Fighting cases is a pie-in-the-sky scenario from my perspective, but I’m intrigued by the idea of bloggers having at least someone professional to turn to for an baseline opinion on what to do next. First you’d have to have to be an entity-like organization though. And the international focus just comes with the territory.
    *Puts deep thinking cap on*

  • I just emailed Cory Doctorow asking if the EFF is involved in this; also sent an email to folks who are forming a Center for Online Investigative Research, one intention of which is to connect bloggers and journalists for mutual support/symbiosis.

  • Steve Rubel brought this to my attention a few days, perhaps because in my former life I practiced law for 17 years.
    If you are blogging as part of any business, insurance is the answer. Used to be that any general business liability policy would cover claims for personal injury including defamation claims and the like.
    Insurers now exclude such coverage in general policies. But defamation, copyright claims etc can be covered under additional coverages. It is going to cost me $5,000 more a year for such coverage. Terribly expensive and though I do not expect to provide anyone the basis to bring a successful claim, the defense costs for a lawyer in a fight with a big player would be in the hundreds of thousands of dollars.
    This is not a good option for the average blogger but an awful lot of bloggers are doing so because it is the best cost effective form of marketing themselves. The cost of insurance is then a cost of business.

  • Reciprocal Exchange may be a better solution. See

  • Blawgosphere’s heating up over this idea, Jeff, and rightly so. A couple recs:
    – Denise Howell has some great strategic thinking on the issue
    – So does Evan Schaeffer (great comments to his post)
    – Matt Homann’s suggestion is pure blogger activism: Bootstrap bloggers an insurance policy.
    – I link to you and to all of them here:
    Umbrella insurance is a great interim solution, I agree. We should all carry it anyway, frankly.
    Thanks. The more bloggers familiar with this issue, the better.

  • Just to clarify, if you don’t mind, and among us friends: I am not a blogger, but I am the lawyer who, pro bono publico, put the rubber to the road in the Bob Cox / New York Times incident. I am a litigator in New York specializing in intellectual property, First Amendment and the Internet. Besides having broken new ground in legal advertising on blogs, I have volunteered more than once to be “the lawyer for bloggers” (the one they mean when they say “call my lawyer”) in return for bloggish promotion of my fledgling office (two year old practice, but I have been in practice for 15 years), and I now do so again.

  • What is being overlooked is the most important issue of all. The First Amendment protects most forms of speech. This is what blogging is all about. This is why blogging is such a threat to commercial interests. If someone knowingly defames a business or product, the law provides a remedy for that which should be pursued. But any good lawyer knows that many threat letters are specious at best. We also know that many bloggers have no funds to even fight and must capitulate to even the most frivolous claims. This is the true evil which lurks beneath the surface.
    The insurance or defense fund ideas are critical so that the wheat can be separated from the chaff, the good claims from the bad. If a claim needs to be fought then the insurance assigned attorney fights that claim. If the blogger is in the wrong, the insurance pays that claim and the blogger pays his deductible. Multiple claims causes the blogger to loose their insurance.
    First amendment issues must be fought within the legal system, not based on economics. Everyone looses when a blog site comes down because the blogger can’t defend himself on the merits of the claim.
    The old Sampson and Goliath problem is very real. Can Sampson afford to fight Goliath with their team of lawyers and threat letters? Somehow, all blawgers need to find ways to combat these attacks on free speech. The issue of insurance is interesting. Trademark and defamation claims used to be covered by your standard business policy under the