Who Owns Your Law Blog Content? Supreme Court Decision Highlights Issue

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Of course you as a lawyer or legal professional own the content you publish to your law blog.

But yesterday's Supreme Court decision reinstating a settlement in New York Times v Tasini highlights the murky waters we're going to navigate on this issue as more and more publishers re-purpose your blog content, with and without your permission as the blogger.

Tasini, as reported by Adam Liptak of the New York Times, was a class action case brought by freelance writers claiming that newspapers and magazines had committed copyright infringement by making their contributions available through online databases.

"We wrote for your newspaper or magazine and now you guys are archiving our content in a database available to subscribers. In some cases you are licensing our content to third parties (Thomson Reuters, LexisNexis) who then sell access to databases including our content. You as a publisher are making more money off us freelancers by using our content in a fashion that we did not authorize."

That's the gist of the claim as I see it. I see it as a legitimate beef. So did a group of publishers who agreed to pay $18 million to the freelancers.

The publishers in that settlement, among newspaper companies like McClatchy and Knight Ridder, included LexisNexis owner Reed Elsevier and Thomson Reuters, owner of West Publishing and FindLaw.

Both West-FindLaw and LexisNexis are now looking to obtain law blog content. They're coming to LexBlog, to lawyers and law firms directly, and to outfits like Newstex who created a business by buying and selling the rights to blog content.

Any why not? Law blogs are quickly becoming a leading source, if not the leading source, of legal insight and commentary. Without law blogs, West-FindLaw and LexisNexis have gaping holes in databases of legal resources their subscribers are paying to access for legal research.

West and LexisNexis can can likely take excerpts or intro paragraphs of law blog content via Fair Use. In which case the full blog post would be linked to with users reading the full text on the blog itself. But if the full text of a blog post is not included in West and LexisNexis databases, the content is not subject to a search by users of West and LexisNexis. In addition, those legal publishers want users remaining at their websites, not going off to third party websites and blogs to read content retrieved in search results.

It will be the rare blogger who can approach the dualopolists (LexisNexis, Thomson Reuters West/FindLaw) to negotiate the licensing of their blog content. More likely we'll see blog aggregators with an editorial review process screening law blogs negotiating with LexisNexis and Thomson.

It may be that LexisNexis and Thomson will begin to monitor the legal blogosphere more closely to identify the thought leaders and approach them on licensing deals. But despite LexisNexis having some law centers including blogs and Thomson, I am told, wanting law blog content, I have not seen either company active among the legal blogging community. I'm not sure they're presently equipped to identify the best and brightest law bloggers.

When it comes time to license content to the big boys and other publishers, I'm apt to advise lawyers to get your blogged copy in as many places as possible without asking for compensation. Unlike freelancers whose business model is to charge for their copy, a lawyer already has great business model. Engage one's target audience via blogging so as to develop more legal work for which you get paid a fair sum.

Ought to be an interesting ride ahead. Who'd have thunk traditional legal publishers would need to address content being created by what's going to be tens of thousands of legal writers/bloggers? And who'd have thunk as a lawyer that LexisNexis and Thomson West would be coming to you asking for permission to use your scholarly works?

New York Times Co v Tasini
Tasini in Oyez
Findlaw
Review