Lisa Borodkin

Steve Kwok in China recently asked:

What is the most comprehensive law regarding IP protection for blog posts?

The short answer: the blogger retains copyright but the owner of the blog publishing system may reserve the right to sell the content back to the blogger.

Terms of Service increasingly try to carve out property rights for the owners of sites offering free publishing tools on the Internet. Fair enough, given the theory that a Terms of Service agreement is a contract between the user and the hosting site.

To take it a step further, does ownership of copyright in blog posts create property rights vis-a-vis third parties? The plaintiff in Lenz v. Universal Music Publishing Group, the “dancing baby” Youtube case thinks so.

Most of the commentary on the Lenz case focuses on whether posting the video, which embodied portions of the Prince song, “Let’s Go Crazy,” was fair use under the copyright laws. Fair use is always hotly contested, and always will be, due to the number of factors involved.

However, this case also raises the question of whether posting video to Youtube is a privilege or a right. In the first version of the complaint, Lenz claimed it is a right under her contract with Youtube. Presumably the contract arises from a user’s agreement to abide by Terms of Service. Based on that, Lenz sought damages against Universal for interfering with that right.

“Because Universal’s notice was intimidating, Ms. Lenz is now fearful that someone might construe some portion of a new home video to infringe a copyright. As a result, she has not posted a
single video on YouTube since she received the takedown notice.”

It’s a bold claim. How extensive are these rights, and how would they be quantified?

In the Second Amended Complaint, Lenz dropped the tortious interference claim.  However, as user-generated content becomes an increasingly important component of new media business models, it’s worth considering whether others will test similar claims.