As a general rule, bloggers should seek permission before copying other peoples’ work in substantial part. The fair use doctrine of copyright applies to blogging and fair use as a defense to an otherwise proven case of copyright infringement may allow the use of copyright protected works for literary criticism, commentary, reporting, scholarship or teaching. With that in mind, it is best to avoid taking significant portions of the work you are commenting upon. A fair use defense would look at the substantiality of the portion of the work used in relation to the copyrighted work as a whole, and the effect on the potential market of the copyright infringement. To protect yourself, bloggers should publish only as much and no more as required to make a point, credit the original author and link to the original source for the complete work.

One of the attractions of blogging is its apparent anonymity. However, if you blog anonymously through a third-party service (such as www.blogger.com or www.blogspot.com) the service may be subject to subpoena seeking your identity from the blogging service provider. As with most things on the Internet, anonymity is more apparent than real.

Business-Related Issues: A number of issues arise where small businesses or its employees engage in blogging. These include leakage of proprietary information, disparaging blog entries, implications for product liability and for litigation issues.

Corporate blogging generates new risks. The informal and often “stream of consciousness” style (a large part of blogging’s appeal) tends to foster lack of caution and careful consideration. Informal discussions published on corporate or insider blogs could arguably run afoul of securities rules against elective disclosure or disclosure during applicable “quiet periods.” Corporate blogs also risk disclosure of company information used by employees with terms of employment or leakage of confidential, sensitive or proprietary information.

It's smart for companies to have a policy. It is likely that there is a blogger in every company and blog-related legal issues are inevitably complex. Small businesses and larger companies alike should clarify their policies on blogging and consult with legal counsel to have the expectations of employees set out clearly. A comprehensive blogging policy should govern use and content.

Even then, however, general prohibition on the publication of defamatory material is unlikely to exclude liability entirely. Established case law suggests an employer can be liable for even unauthorized publication of allegations by an employee when that publication occurred in performance of an employee’s authorized acts. The fact that the employee chose an improper method of performing his job does not shield the employer from liability. Certainly, this logic can be applied to blogs in which the employer has encouraged legitimate discussion of reliable businesses. Like email, blogging tends to lessen an individual’s filters. Blogs may also intensify the risk of liability for defamation, copyright and trademark infringement, disclosure of trade secrets or private customer information or other business torts. Even comments posted to a blog by unrelated third parties may rise to claims of corporate liability.

As blogging increases in popularity, businesses will benefit from an up-to-date blogging policy with the understanding that the same laws cover blogs as traditional publishing. Treat blogs with the same care you would give to the contents of a newsletter or any other information distributed on behalf of your company. For more information on blogging policies, speak with an intellectual property attorney or visit www.eff.org/bloggers/.

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