This is a topic destined for a courtroom one day, bitter enemies formed along the way: Can a blog publisher collect blog comments and publish them in a book? We addressed this topic weeks ago, with no definitive answer. The question arises again today as a result of simultaneous, otherwise minor, occurrences.
The first occurrence is customized Web services company JS-Kit acquiring comment aggregation company and former partner Haloscan. It’s a minor occurrence because both companies are rather small (weird, though, that a company with 30,000 customers swallows one with over 500,000). Not so many people will notice.
Haloscan’s considered a veteran in the relatively young field of comment aggregation. Like the previously discussed Disqus, Haloscan makes it possible for a commentator to sort of claim ownership of their comments by tracking them where they appear across the Web and pulling them under one roof. A person could publish a personal website dedicated only to quoting themselves on various topics.
This presents a number of complications involving comment ownership. Does the commentator own his words once printed elsewhere? Does he have the right to gather them up and publish them separately or does he have to get permission from the original publisher? Does the publisher have the right republish and distribute, or is that somehow an infringement? What about aggregating itself? Is that a form of publishing? It’s been okay thus far (mostly) for the search engines—empires have been built upon it—why would comment aggregators be any different? What happens in cases of anonymity?
The last time this came up, Robert Scoble seemed pretty certain his comments couldn’t just be deleted from cyberspace, especially once they’d been aggregated. We talked to a law professor, Santa Clara’s Tyler T. Ochoa, who noted that the Scobleizer, though the owner of his comments, likely needed some sort of written contract with the blogger in question before his demands held any merit. That same law professor interpreted and applied the law this way:
[I]f a blogger wanted to publish a best-of collection of comments…the blogger would likely need permission from the commenter.
In essence, according to Ochoa, the commenter forfeits rights to the comment only to the extent of allowing them to be published on a blog post. Again, though, without some sort of written contract, it’s hard to enforce one way or the other.
The second occurrence today comes from a short Twitter conversation begun by blogger, journalism veteran and professor Jeff Jarvis. Via a series of tweets, Jarvis comes squarely down on the journalistic tradition side of the argument. “I just wrote a chapter out of the book (the one on insurance) almost completely from blog comments,” tweeted Jarvis. “The value of collaboration! Thanks.”
From the same cyberspace into which that was launched, came a reply from David Cushman, Digital Development Director for magazine publisher Emap: “do u have a plan to share the proceeds and were commentors aware of this when posting?”
This appeared to rub Jarvis the wrong way. He confirmed commenters were aware and offered a seemingly miffed “C’mon,” before asking Cushman, “Do your magazines pay everyone you quote? Jeesh.”
Cushman caught the tone and clarified by saying he was just asking, but it is an important question without an easy answer. In journalism, quotes, even quotes from other publications (with citation) are fair use. When does a comment cross over from creator-owned content into the realm of publicly and factually stated?
The comedian, Gallagher, once quipped, “Can I say Priscilla Presley has a big butt? Will I have to prove it in a court of law?” That’s SO 20th Century. Today it would be, “Can I say he said Tila Tequila’s as genuine as her chest? Will he be able to sue me because he wrote it down instead of spoke it?”
We’ll continue to keep an eye on this topic and seek expert opinions.
