Do comments qualify as “content”?

There seems to be a theme developing around the topic of comments, whether they appear on a blog or on FriendFeed. It sort of started with a conversation about the ongoing issue of fragmentation — in which comments appear on blog posts but then also appear at FriendFeed (and in multiple places on FriendFeed, as commenters on my post noted). Then Hank Williams (no, not that Hank Williams) wrote a post about how comments might even be considered copyrightable content, and Josh Catone wrote one at Read/Write Web about comment ownership — at which point, Steven “Winextra” Hodson launched into one of his trademark rants about how comments are not content.

I’m going to have to disagree with Steven on this one, however, at least from a legal standpoint (although I am not a lawyer, and don’t even play one on TV). As some of the commenters on his post at FriendFeed note, comments on blogs meet many of the tests that would likely be required to qualify as copyrighted content. Whether anyone would be dumb enough — or stubborn enough — to actually pursue such a claim is a separate question, of course. Still, as Mark Trapp points out, most mainstream media sites have a “terms of use” policy that says you effectively allow the site to use your comments, which they wouldn’t have to do if they weren’t legally required to.

I think Steven’s point was more that comments shouldn’t be thought of as copyrighted content, and that they should function more like a conversation in a bar or on a street corner — and I would agree. Legally though, I’m pretty sure they would be considered published content, and are therefore “owned” by their creator, unless he or she gives up that right to the blog or service that hosts them. So could Robert Scoble sue Rob La Gesse for deleting his from FriendFeed?

Update:

Michael Beck points out (on FriendFeed) that these questions have come up before, and points to a discussion here, and also here and here. Meanwhile, Daniel Ha of Disqus — the comment aggregation system I use here — has drawn up a prototype for a “commenters’ bill of rights.”

15 thoughts on “Do comments qualify as “content”?

  1. Thanks for the mention, Matthew! To your question, whether Rob La Gesse's deletion of Scoble's comments is actionable: I don't think it is. Copyright protects means of distribution and reproduction, not deletion: it's up to Robert Scoble to ensure he has backups, not Rob La Gesse.

  2. Robert Scoble answers your last question for you in his own words: “Chris: actually the person who started the comment cluster does “own” the cluster. For instance, you are commenting on my cluster here. I can delete your comment. I could also delete the whole cluster including everyone's comments on it. I've already deleted one comment to remove spam. This is like you are commenting on my blog and I have the same rights there.” (Source, FriendFeed: http://friendfeed.com/e/e4fa4693-b6c8-4f72-a9d2… )

  3. According to Rob, he has a disclaimer on his site that says the comments belong to him: http://whydoeseverythingsuck.com/2008/05/who-ha

    To me, it seems logical that if you're worried about ownership of your comments, stay off the blogs that have the disclaimer.

    As for Robert suing for loss of his FriendFeed comments, I really don't see that being legit since FF is a third-party site not owned by Robert. Chances are, FriendFeed has in their own TOS somewhere that all content posted in FF belongs to them anyway.

    It would be logical to think that whomever is hosting the comments has ultimate control since the commenter can't force the site to stay up (in order to keep the comments alive).

    That being said, I still believe I have ownership of my comments, until I give up that right by agreeing to your disclaimer. And I still a huge advocate of users being able to manage and control comments (editing, deleting, exporting, etc.).

    • Friendfeed, in its ToS, makes a blanket “we don't own anything here, we merely aggregate and republish and link to content” statement:

      You are solely responsible for your use of the Site and Services. Because FriendFeed merely serves as a repository of information, user-posted content does not represent the advice, views, opinions or beliefs of FriendFeed, and FriendFeed makes no claim of accuracy of any user-posted material. FriendFeed archives links to third-party websites. The linked websites' content, business practices and privacy policies are not under our control, and we are not responsible for the content of any linked website or any link contained in a linked website. The inclusion of a link on the Site or Services does not imply any endorsement by or any affiliation with FriendFeed. In accessing the Site and Services or following links to third-party websites you may be exposed to content that you consider offensive or inappropriate. You agree that your only recourse is to stop using the Site and Services.

      The main reason for doing this is for legal immunity from section 230 of the Communications Decency Act: in order for an internet provider to be immune from legal problems with the content of its users, it must waive its right to ownership. I think a lot of bloggers, when they force their ownership on everything on their site, are being myopic. What happens if one of their users posts child pornography? Or incites a riot? Or any number of other worst-case scenarios?

      • I would assume that the following excerpt from the TOS is in regard to content generated by the FriendFeed organization themselves, but could it also apply to users?

        FriendFeed-originated content included on the Site, such as text, graphics, logos, software and the compilation of all content on the Site, is the property of FriendFeed and its licensors and protected by United States and international copyright laws. Except as set out in these Terms, no reproduction of any FriendFeed-originated content is permitted without written permission from FriendFeed.

        • I see; since it was posted at Friendfeed, it technically “originated” at Friendfeed. That could be a possible way to interpret it in court, should someone want to hold Friendfeed liable. I wonder if there is precedent for that approach.

  4. a) yes, they are content,
    b) and therefore, yes they are copyrightable, but
    c) by leaving a comment you're giving someone else permission to use it, but
    d) you still don't have a legal right to force someone to publish your content.

    The thing to remember about copyright law is that it doesn't care to elevate the Web to some mystical level of Wowness, but gives it the same mundane treatment as any other medium for publishing.

    So if you're curious, do a quick Google search. I'm sure you'll find some cases of oddballs suing newspapers for not publishing their letter to the editor, or trying to get compensation for their works.

  5. Pingback: Who Owns Comments? Who Cares. - Regular Geek

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