Thanks to Dan and the rest of the Concurring Opinions team for hosting me this month. Incredible as it may seem (given the number of law geeks involved and our sophistication about the applicable law), we enter into this guest-blogging arrangement without any contract of any sort. Thus, any legal consequences of my guest-blogging are governed by default rules…whatever those are.
Fortunately, with respect to liability to third parties, the default rules are generally favorable. 47 USC 230 absolutely immunizes my blog hosts from most types of liability for what I say or do. If I defame someone, I’ll be on the hook, but my peers won’t be. After the California Supreme Court’s opinion in Barrett v. Rosenthal, I think it’s also 100% clear that I’m generally not liable for the posts of my peers. (Pursuant to the reasoning of that case, I could claim to be a “user” of the Concurring Opinions interactive computer service). Even though Dan doesn’t like 47 USC 230 as much as I do, we all benefit from it in this case.
But 47 USC 230 doesn’t cover all types of third party liability—most critically, it leaves open the risk of copyright liability. For example, if I post an infringing photo to the site, not only would I be liable, but my blog hosts could face contributory or vicarious liability. A statutory safe harbor, 17 USC 512, putatively provides some relief, but (1) that safe harbor isn’t nearly as robust as 47 USC 230, and (2) more importantly, 512 has a number of prerequisite formalities, including the requirement that the website register with the Copyright Office, which Concurring Opinions has not done. (You can confirm that here).
As a result, default copyright doctrines apply to any infringing posts I make. Of most concern is vicarious copyright infringement, which would hold the Concurring Opinions folks liable for my infringing posts if they had the right and ability to supervise my infringing activities and a direct financial interest in those activities. (Because it’s a vicarious doctrine, scienter is irrelevant). Even though Concurring Opinions doesn’t generate any revenues (as far as I know!), the Napster court found that Napster had a direct financial interest in infringing P2P file sharing even though Napster didn’t generate a dime of revenues. Instead, the court said that the infringing materials acted as a “draw” to induce people to use Napster. So the principal issue in any vicarious copyright infringement claim would be whether my blog hosts had the right and ability to supervise my infringing activities. Many defendants do not find this a comforting standard…
(Note this analysis could work in reverse as well, where I could be liable for any infringements committed by my peers. As a guest-blogger, I feel a little better that I lack the requisite right and ability to supervise the infringing activities of my peers…but this may be a self-serving statement!)
If you’re interested in a more extensive analysis of liability for guest-blogging, see here.
While the liability situation could be disconcerting, I think the dynamics of being a guest blogger may alleviate some concerns. I am finding guest-blogging a little inhibiting because I don’t want to violate the norms of my blog hosts, which makes me even more cautious than normal. In this respect, guest-blogging feels a little like visiting a friend’s home. The friend may say “mi casa su casa,” but I’ll still carefully wipe the dirt off my shoes and try not to use the guest towels in the vanity bathroom. Similarly, I’ll blog politely here and save my reckless blogging for my own blogs.