The correspondents here:

Q. What protections afforded to print and TV journalists might not apply to bloggers?
 
Volokh:  Hard to tell for sure. There are some statutes and state constitutional provisions that provide journalists *more* protection than is required by the First Amendment, and some of these statutes are by their terms limited to certain media. The hard question is whether these terms should be read as covering blogging and the Web generally, which didn't exist when many of the provisions were written. A lot depends on the particular terms of the statutes, and, when the statutes are vague, on the views of the judges. I discuss some examples -- especially retraction statutes that can decrease the liability for libel, reporter's privilege statutes, and press credentials -- here:    http://techcentralstation.com/120502B.html  - excerpt below:

Some states have laws that give special protection to some forms of media - in particular, by protecting them from libel liability if they promptly publish a retraction (or if the plaintiff fails to demand such a retraction). Should Internet speech, from Slate to weblogs to chat room postings, get the same protection?

 

Cyberspace speech is generally entitled to the same First Amendment protections as speech in newspapers or magazines.

But statutory protections that go beyond what the First Amendment requires are a different matter, precisely because they are given only by the grace of the state legislature, with boundaries set forth by the legislature. The question is what the words of the statute call for - though a court may interpret the words in light of policy arguments about equal treatment and medium independence.

 

The Georgia Supreme Court has just held that the Georgia retraction statute does apply to Internet speech (specifically, to posts on a Web-based discussion group). (Mathis v. Cannon, No. S02G0361, Nov. 25.) The statute, Ga. Stat. Ann. § 51-5-11, protects defendants from punitive damages if they promptly and prominently publish a retraction "in a regular issue of the newspaper or other publication in question." (They may still be liable for compensatory damages.) The court held that "other publication" includes Internet publications, and didn't respond to the dissent's argument that the "regular issue" language excludes occasional Web posts, which don't come in periodical "issues."

 

What's more, the court justified its position not just by referring to the specific terms of the statute, but also by appealing to broader principles:

Our reasons for preferring this broader reading are many... It encourages defamation victims to seek self-help, their first remedy... It eliminates the difficult task of determining what is a "written publication" and who is the "print media" at a time when any individual with a computer can become a publisher. It supports free speech by extending the same protection to the private individual who speaks on matters of public concern as newspapers and other members of the press now enjoy. In short, it strikes a balance in favor of "uninhibited, robust, and wide-open" debate in an age of communications when "anyone, anywhere in the world, with access to the Internet" can address a worldwide audience of readers in cyberspace.
Courts in other states may well find this reasoning influential in interpreting their own statutes.

 

Of course, some courts may disagree with this approach, especially if the statutory text seems inconsistent with it. Thus, a Wisconsin intermediate appellate court held several years ago that a state retraction statute that protected "periodical[s]" didn't apply to posts on Web-based chatrooms. (It's in the Cards v. Fuschetto, 535 N.W.2d 11 (Wis. App. 1995).) . [ and so on ]

Q:  What do bloggers need to know about copyright laws, including the use of published and unpublished material?
 
Volokh:  A lot, much more than I can say here.  A few short tips:   (1)  Don't publish personal e-mail that you're sent unless you're pretty certain that the sender wanted you to publish it -- it's not nice, and it's also probably a copyright infringement.  (2)  Excerpt articles rather than posting the whole thing, at least unless you're responding to them line by line; copying a whole article is less likely to be a fair use than just copying part.
 
Q:  Can you foresee a lawsuit against a blogger that might have a chilling effect on blog journalism?
 
Volokh: Sure, I can foresee lots of things, many of them inconsistent with each other.  My guess, though, is that such lawsuits will continue to be rare, and people will continue to be willing to blog despite the risk of lawsuits, just as they're willing to write in other media.  Naturally, some sorts of blogging -- for instance, blogging that focuses on accusations of misconduct that are based on the blogger's own personal knowledge -- might be deterred by libel law, even without a highly publicized lawsuit.  But most blogging won't be.
 
Q:  What other implications under press and copyright laws do weblogs raise?
 
Volokh:  By and large, the same ones that other media -- books, newspapers, magazines, and so on -- raise.  Generally speaking, the issue under most such laws is the message, not the medium.  If you can say something in a newspaper, you can say it in a blog.  If it violates the law in a newspaper (for instance, if it's libelous, a copyright infringement, false advertising, a threat, and so on), then it violates the law in a blog, too.  There are some exceptions, but this is the general rule.

You write, "I may have to drop my 'mail' section."

I don't see why, especially from what's written here.

I'm not a lawyer, but I can tell you the rule-of-thumb approaches I've always taken, especially in my newsletter of years ago, and to a lesser extent, with my website now:
Defamation comes in two formsslander (usually spoken, in person) and libel (published or durable, such as print or broadcast). In this country, both are governed by individual state laws.

You commit libel (in the U.S.) when you publish a lie about someone that does them damage. (Note that a lie usually just means telling an untruth that you know is untrue, but in this case also includes not caring enough to check out whether its true or not.)

If someone sues you for libel, they have to prove that (a) what you said was untrue; (b) you either knew it was untrue or didn't try to find out; (c) it damaged them (often, their career) in some material and quantifiable way.

That last one usually takes some length of time to determine, and it usually (although not always) has to be substantial enough that they want to take you to court over it.

In four years of publishing my newsletter, I only came close once. I forget what the specific story was, but in one issue, I passed along a rumor. Two days after it was printed, the subject of the rumor called and demanded a retraction. I told him if he told me his side of the story, I would print it, without editing. He did, I printed it in the next issue, we became good friends. (I forget his name, but we were good friends, at least for awhile.)

The only problem I see you actually having is one of copyright, and I don't see it as a huge problem.

In the case of your reprinting "letters" from people, you should always make sure you have something on file that either gives you blanket permission to use his letters, unless he specifically says otherwise (which is what I have given you); or lacking that, specific permission from someone to use a specific letter. But even then, I think someone suing you would have to prove you somehow deprived them of revenue they might have gotten from selling that material somewhere.

The other copyright problem might be not on your website but your sending all those clippings around. [ Rick is referring to my email group, the listers." ] I suppose if one of the sites or publications you lift from got wind of it, they could try to make an example of you ...  if they were real jerks. But I'd think that as long as you keep the distribution list to a relatively small group, and as long as you always give attribution and source (so you dont look like you're claiming it as your own product), I'd think you're not likely to run into trouble.

On my website, I only quote promotional wordage from someone in which I'm reasonably positive they want their event promoted, and I lift only graphics associated with that promotion. If a promotional graphic or photo comes with a photo credit, I make sure to include that credit on the copy of it that I publish; if it comes with a copyright notice, I won't use the graphic.

As I say, I'm not a lawyer and not licensed in ANY state to give legal advice. If you want the real thing, ask [your attorney friend] Martin.

(Although he may send you a bill.)

Rick

Ah, Martin won't send me a bill.  He still owes me money from a time long ago, in the mid-eighties, when he fled Sacramento and turned up on my doorstep here in Los Angeles when I was living down at the beach - but that's another story.  Sacramento is an awful place, on so many levels.  Anyway, Martin is an expert in a very different area of the law.

When, in the magazine, I quote a letter without asking, I make sure I don't say who it's from.  At all.  I may give a city or country.  That's all.  Readers not in the discussion group, who aren't "listers," probably assume I make up this stuff and no one ever really writes to me. 

And as for what I send the "listers" every day - I do not consider that "publication," or republication. 

 

The line between personal email and publication gets hazy, of course, as the size of the group grows, as we have discussed. 

 

But assume, for the sake of argument, those emails are de facto "publication."  It could be argued that the dozen or so listers who receive each post are people who would then not buy the publication in question, nor hop on the "source website" and see all the banners and pop-ups and other advertisements... so there could be a potential loss of revenue - and I'm to blame for that.

 

Yes, I created a situation where handful of folks saw an article and did not have to go to the source to see it.  Would they have gone there anyway had I not pasted the article in question in an email?  I doubt it.  And that question is entirely hypothetical.

 

Heck, I would argue my email makes it much more likely that any given lister will buy the source publication or visit the source site in the future, that in fact, I am actually promoting the source of the article.  Im doing them some good.  They could sue me for loss of revenue, or I could suggest maybe they ought to pay me a small finder's fee for steering folks to them.  You could argue it either way.

And I absolutely never claim anything is mine that isn't. 

And I have so few readers all this doesn't matter much.

I don't think there is much difference between what the listers comment concerning the articles you pass along to us and voicing an opinion about a TV show.  Regarding Sex and the City's last show lister Phillip Raines had this to say, "It just sucked, what a chick show."  Regarding Molly Ivins editorial Phillip Raines had this to say - "A great perspective - funny and smart."  There is a quality to it that is similar to conversations from the loafer's bench at the barbershop.  Naturally you are free to print what ever I write, as long as you edit out the things that make me sound stupid.  Now about payment... found any funding yet?

Funding?  Funding?  I haven't figured that part out yet.  I think that sort of depends on developing a product people find to be of some value.  I guess the idea is first to produce something good, regularly, then promote it to anyone you think might like it, and have them spread the word, and finally when there is a readership of some size, you tell advertisers about your circulation figures - your unique and repeat "hits" per week - and convince the advertisers to buy space.  And then the pop-ups and banners piss off everyone and your readership drops.

 

I see on some of the "lefty" sites (BartCop) that if I agree to use their banner on my homepage I should get 35,000 hits each week, as folks stomp around from one site to another.  They won't pay me anything, but say the traffic will jump.  Maybe.  I don't quite believe it.  If that is so then I would have to buy more bandwidth.  Ah well.

 

As you see, I haven't thought about this much.  I need a business plan, I suppose.  Not tonight.

 

And my previous post talks about attribution and copyright and all that.

I agree, although with these two hesitations:

1) As a practical matter, it's very unlikely the original copyright holders will hunt you down for distributing their articles. But when it comes to establishing their case, supposing they hypothetically decide to launch one, I don't think your argument that you are promoting their product (much less that you should get a finder's fee) would matter, since they alone, as owners of the "copy right," have the legal right to determine that. But as I say, we all take chances, because thats we do in life. (As I mentioned, I take these chances myself.)

2) Not mentioning the name of your letter writers probably doesn't allow you much protection from libel (as long as you can prove that this certain person you mention actually DID say this certain thing), but I think it does open up the copyright liability a bit more, in the sense that someone may WANT the credit for being the first to mention such-and-such, and since you didn't publicly give it to them, you might be called as a witness in a case later on.

 

I mean, in some way, arent we all doing this because we're blowhards to the core, wanting folks to give us credit for all our little cleverisms? I know that I, for one, am!

I guess there was something I left out of my treatise. Putting on my philosophers hat here...

According to the Rick Brown School of Verifiability (although I'm sure he wasn't the first to come up with this), there are three types of statements to consider in this matter:

1. Descriptive Statement of Fact - Pretty easily verifiable; pretty widely accepted to be true. ("George W. Bush is the President of the United States.")

2. Descriptive Statement of Opinion - Still a claim of truth, but not so easily proven, and nowhere near universally accepted. ("George W. Bush slips out of the house on Wednesday nights to meet with his mistress.")

3. Normative Statement of Opinion - In the speaker's opinion, something is good or bad or better or worse or whatever. ("George W. Bush is a jerk.")

 

Not sure precisely what the laws say about this, but I'm reasonably sure questions of libel (in these separate United States, at least) consider the first two items, but (based firmly on the philosophical grounds that "opinions are like certain body parts; everyone has one, and they all smell") not the third.

Although we might find ourselves saying things like, "George Bush a jerk?  Why, that's not true!!" or even "That's a lie!!" But in fact, this sort of statement is neither true nor false, it's pure opinion, especially (in my humble opinion) under the law, and thereby exempt from the libel equation.

(The abovementioned body part in question, of course, being the nose.)

"They won't pay me anything, but say the traffic will jump ... If that is so then I would have to buy more bandwidth."

 

That's called "negative funding".

Okay, unlike me, when Ludwig Wittgenstein issued what he deemed the last treatise on philosophy that ever needed to be written, he waited well over two hours to issue his updated correction.

Other than the fact that I need to find better titles for these three points, I see another problem in what I wrote. The second item should read...

2.  Descriptive Statement of Opinion - A statement that, in the speaker's opinion, such-and-such happened or happens or will happen. ("I think George W. Bush slips out of his house on Wednesday nights to meet with his mistress, but I dont know for positive.")

Not at all sure how libel law handles this kind of statement, but I suspect they mostly lump it with the other opinion statement - that is, as long as the speaker specifies that it's only his opinion, they'd probably exempt it?  (My previous version of item #2, being just another statement of fact, probably should be lumped into item #1.)

There is also, of course, such things as satire and parody, in which case, as I understand it, if most reasonable folks would know the statement of fact isn't supposed to taken literally but is just kidding around, the statement is also exempt. (I forget the landmark case on this, but I think Larry Flynt, who published some story about some famous preacher and his mother in an outhouse, successfully defended a case against him brought by the preacher.)