Reasonable Man

What about ownership of the compilation of the blog comments? As I understand it, the specific arrangement of a collection of copyrightable works is also copyrightable. So while the individual authors retain copyright on the comments, I retain copyright on the presentation of those comments as a group.

On the question of removal of comments, one problem is that it is impossible to validate the owner of comments on many blogs. Unless you require some sort of authentication for commenting, anyone can post a comment and say that they are you. Likewise, anyone can ask you to remove a comment and claim that they made it. So you might end up removing a legitimate comment on the request of someone who didn't actually leave it.

Great points, Adam.

1. Yes, there is copyright protection at the compilation level for a collection of copyrightable works. Keep in mind, however, that holding a copyright in a compiliation does not mean that the compilation author holds any rights in the underlying items. So in this case, the comment author could still demand that his/her the comment to be removed from the weblog or 'comment compilation'.

Furthermore, it is important to remember that a compilation is only copyrightable to the extent that the underlying items are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Arranging the entire set of comments alphabetically or chronologically (the most common approach) is probably not enough to trigger a compilation copyright.

2. As for blog comment
authentication and removal requests, you points hit the bullseye. The safest route is to require registration, with validation for all persons seeking to post comments. Without this level of authentication, you cannot even be reasonably certain that a comment removal request is coming from the actual comment author.

But requiring authentication, of course, is likely to reduce the amount of comment activity on your blog. Without authentication, the safest practice is to treat all removal requests as though they are from the original author.

This comes down to a balancing test -- do you want to make it harder to make comments, but easier to avoid copyright infringement issues? Or do you want to encourage more blog comments at the expense of certainty as to authorship?

Nice article (hat tip to Adam for the link). How does this relate to forum posts. Forum posts seem like a logical extension to the above information.

Also, what if there is a copyright waiver/disclaimer in the terms of use for a blog/forum stating that posting grants non-exclusive rights to the blog/forum? Does that have to be writing, or can it simply be "terms" for using the service?

Charles:

Good analysis. I've had th is on my mind lately, but I don't draw a lot of comments so dealing with the issue hasn't been a priority to me.

I've been trying to avoid posting formal terms of service in the standard legalese because it evokes an atmosphere I'd like to avoid. But I will revise my templates and terms today to make matters a little more clear.

chrispian:

Strictly speaking, a non-exclusive license doesn't have to be in writing, at least in the United States. (Exclusive licenses DO have to be in writing.) You could argue that by posting a comment in a place where comments are displayed for public viewing, a commenter has given you an implied license to display those comments. But having some kind of written notice always makes your position more secure.

Not to quibble, but you said:

[quote]Furthermore, cop yright protection arises the moment an original work (a web page, ad copy, essay, blog comment, etc.) is published.[/quote]

However, I do believe that it would be more correct to substitute the word "created" in place of published.

IANAL, however, I do have a BS in Arts Management, and have studied this topic quite a bit.

Tony-

Good point -- you are correct that copyright protection arises when a work is created, and not necessarily when the work is published. In short, the trigger point for creation is when a work is "fixed in any tangible medium".

In the case of blog comments the moment of creation and publication gets a little blurry. Although, to your point, copyright protection arguably arises when the comment author enters text into the comment field - even before he/she clicks the "post " button.

As further illustration, let's say you write blog comments in the following way:
1) First, you craft the perfect two sentence blog comment in you head.
2) Second, you manually write your perfect two sentences on to a notepad with a pen.
3) Third, you then type the handwritten sentences into the comment field of a blog.
4) Fourth, you hit the "Post" button and publish the comment.

In the scenario, copyright protection arises at step 2. This is the moment at which the work is fixed in a tangible medium -- when ink hits the paper.

See US copyright code here: http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-.html

Chrispian-

Your connection of blog comments and online forums is spot on. I would apply the above analysis to online forums. The author of a f orum post holds the copyright in his/her post. And again, a clear Terms of Service with appropriate licensing language only strengthens an online forum operator's position.

Tim-

You make an interesting point about an 'implied license'. By posting a blog comment, the comment author clearly intends and expects the blog operator will publicly display the comment. Thus, there is some level of implied license granted when the 'post' button is pressed. However, the extent of this implied license is entirely unclear.

Is the implied license perpetual? royalty-free? sub-licsenable? world-wide? What happens to the implied license if the blog is acquired by a company?

Again, blog operators have a lot to gain by addressing these issues upfront. Again, one option is to implement a Terms of Service with clear licensing language.

I am definitely not a lawyer, so take everything you read in my comment with a grain of salt ;).

In real life, whatever you say, you simply cannot undo it. You can explain, apologise, rant, but the fact stays: You've made your opinion public. Nothing keeps you from changing your opinion, but people will still remember your words.

Shouldn't (I guess that's the keyword here) there be a way to bind blog comments to the same rules? No doubt that a TOS that does this will get complicated and probably span several pages of text, but what about the idea?

Is it possible?

Having recently been threatened with legal action regarding the accuracy and content of a comment left on my Blog, I have been thinking of implementing a ToS. Unfortunately I'm not a lawyer so wouldn't know t he first thing about drawing one up.
You refer above to your ToS as "a sample". Are you offering this for the use of other bloggers on their site? If so, are you placing any restrictions on its use or amendment?