Comments, Copyright and Confusion

Filed as Guides on October 13, 2008 9:02 am

For many blogs the bulk of their content comes not from their posts, but from their comments. It is not uncommon for a blog to have only a few hundred words of text per post, perhaps even less, and many thousands of words in comments.

For bloggers, this is a very good deal. Not only do comments promote a sense of community, add value to the site and encourage repeat visitors, it also adds a great deal of search engine-friendly content that helps to grow the blog.

But the power of comments has caused many bloggers to be worried about what rights they have over them. What happens if a spammer begins to scrape the comment feed? What if a commenter changes his or her mind and asks for the post removed? What happens if I move to another site or service?

Unfortunately, these are not simple questions but they are important ones for bloggers to be aware of, especially since disputes over comments are happening more and more frequently.

Your Rights to Your Comments

Copyright itself is very clear. Whenever a work is fixed into a tangible medium of expression, the copyright reverts to the author of the work. The result is that, when a work is posted to your site, even though it was posted using your server, the copyright is held by the author.

This isn’t to say that the blogger has no rights over their comments. Even if nothing else is present, the mere act of the commenter posting it to the site grants an implied license for the blogger to display it and use it in the manner intended. As such, it is unlikely that a commenter would ever be successful in suing a blogger for the public display of their own comment, of course, it is also highly unlikely any would every try.

However, the fact that your commenters hold the copyright in their comments does provide several critical limitations. First, they are free to post their comments anywhere else, including on their own sites, they have the right to object to other uses of their work, meaning you can not send out takedown notices or cease and desist letters for infringement of your comments, and they have the right to request that their comments be removed.

In short, when it comes to protecting content within your comments, you have roughly the same amount of rights as you would with content posted on other blogs. Other than alerting commenters to the infringement and helping them take action, there is not much that you can do.

Though you can take steps on your server side, such as blocking known scrapers, to prevent copying, once it is has taken place, you can not enforce the copyright of the work at all without permission of the commenter.

Circumventing the Problem

This, in turn, puts bloggers as well as forum admins in a precarious position. Their sites are utterly dependent on the content posted by strangers yet they have no control over the content itself.

Worse still, though an implied license grants certain rights, those rights are vague at best. Certain common events, such as a template change, editing a comment or adding advertisements to a once ad-free site could, potentially, invalidate all or some of that license.

The best thing that bloggers can do to prevent these kinds of issues is to not rely on an implied license and, instead, require commenters to agree to agree to a terms of service in order to post their work. Though the best solution would be to have a lawyer-written terms of use, if that isn’t practical or is overkill for your situation, you can simply have your commenters post their works underneath a Creative Commons or other license.

For example, Digg stipulates that all comments posted by Digg users are dedicated to the Public Domain and Wikipedia requires all items posted to be dedicated to the GNU Free Documentation License.

Taking this simple step can make it clear both what you and others can do with the comment moving forward. For example, if commenters license their work under a CC license that allows commercial use, adding advertising in the future would not be a problem.

However, you have to bear in mind that your terms must be reasonable. For example, no commenter in their right mind would sign over their copyright to a blogger and, even if they did, it is unlikely that such an agreement would be enforceable. This means that, even with a proper license, you can not control how your comments are used elsewhere, you can not file DMCA notices on behalf of commenters without their permission and your commenters are free to do as they please with their work.

That being said, you still have the right to enforce your copyright on anything that you create. As such, if you participate in your own community, which you should do anyway, you could stop any wholesale comment copying by simply pressing the rights in the works that you do control.

In short, proper comment licensing and being involved in your site’s discussions are the two best things you can do to ensure your comments are not abused and that you avoid unnecessary conflict over your comments section.

Some Common Problems

With that information in mind, here are some of the more common situations that a blogger might face when it comes to their comments section.

What if a commenter, potentially a major one, has decided that they no longer want their works displayed on the site and ask for some or all of their works to be removed?

This is a common situation in forums but is becoming increasingly commonplace on blogs as blog communities become more elaborate.

In these situations, the best move usually is to just remove the works. Though, with proper licensing, you could avoid having any legal obligation to do so, it is rarely worth the drama and the headache to keep them up. Not only do such disputes often become great distractions for the community, but the commenter could file a DMCA takedown notice if they genuinely believed that they were within their rights.

The goal of having clear licensing terms, for the most part, is not to prevent yourself from having to remove works, but avoid these conflicts in general. If users realize the terms they posted their works under, they typically do not ask for removal and, if they do, are much less hostile about it.

What if the comment feed is scraped or someone copies and reposts a large number of the comments?

Unfortunately, there is not a lot one can usually do in these situations. If you can get the cooperation of your commenters and have them allow you to represent them, you can file a DMCA notice or take other action against the site. Otherwise, you are limited to taking action only for the works you created.

Copyright always goes to the author of a work or their employer (in certain cases). Other than the license terms you’ve been granted, you have no copyright interest in the work and certainly no right to act on behalf of the author without permission.

As mentioned above, there is nothing that can stop you from enforcing rights to your own works.

What if I want to edit a comment?

Editing is dangerous for many different reasons. First, editing a comment could be viewed as a copyright issue, creating a derivative work from the original that is not covered under the implied license of posting a comment. Second, if you change the meaning of something that is said, it could open you up to defamation issues.

Though fixing minor errors or removing foul language likely won’t cause any problems, heavy editing is risky. If a comment requires a lot of editing to meet your guidelines, it is best to use the “delete” button and ask the commenter to re-post it.

What if I want to change my site drastically, ad advertisements or alter the way comments are displayed?

For the most part, the implied license would cover any foreseeable changes you make to your site. This includes most theme changes and possibly even the addition of advertisements. Still, it is always best to have a real license, not an implied one.

Besides, sudden changes are a primary reasons why people request their comments be removed.

Conclusions

The disputes with commenters are still fairly rare, as blog communities grow larger and more intricate, so will the likelihood of such disputes. Furthermore, as rare as they are, they typically are headache-inducing conflicts that cause emotions to run very high.

The best thing any blogger can do is work to avoid these problems altogether through proper licensing and then protect their comments by participating in their own communities, both encouraging conversation and taking an interest in their comments.

Given the value comments add to a blog and how much time many bloggers spend trying to stimulate the conversation, it makes sense to think about how you can best protect your interest in them while being fair to your visitors.

After all, if done correctly, a fair commenting system can benefit both the blogger and the commenters that make the conversation happen.

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  1. By Spamboy posted on October 13, 2008 at 9:12 am
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    Thanks for this post, Jonathan — it’s a subject that I hadn’t put much thought into until reading this. Are there any famous examples of a commenter and blogger clashing on the display of the former’s words?

    Reply

  2. By Angel Cuala posted on October 13, 2008 at 7:31 pm
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    I am aware about this copyrighting issue about comments, but reading this post makes it clearer. I think that the bottom line of all these is responsibility and respect. We should be mature enough to understand bloggers, readers and commentators are here to communicate, contribute and cooperate.

    Reply

  3. By Michael posted on October 31, 2008 at 5:57 am
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    I appreciate your thoughts and clarification, my own experience is where is the line between a spammer (not the obvious product junk spam) but someone who is just adding a comment for the link and those trying to participate in the discussion.

    Reply

  4. By Triffini Burton posted on March 11, 2009 at 4:31 pm
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    I am fully aware of scams and alway’s thought I was careful with strange phonecalls and bizzar brochures. But I had my 5th child recently and gained quite a bit of weight that I have been desperate to take off, so I thought I would try this Acai Berry/Detox thing. It sounded like a safe way to go, but when my two week trial period was up , I called to cancel. I was told that my trial period has expired. I argued with the company for a while and decided to check with the BBB. Sure enough, they themselves have a warning out for health scammars from Florida. The same day I cancelled with this group, they charged almost $90 dollars from my bank account. Only after the charge did they give me my cancellation number. They did not accept my offer to send back the remaining (over two weeks worth) bottles like the add said you could. If this company has been looked into, then why are they allowed to advertise?

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