Brett Trout - Legal Pitfalls of Social Media (#9)

John Lawlor, host of SocialMedialogy™ Conversations, interviews attorney Brett Trout, author of Cyber Law and Internet Laws Affecting Your Company, and an award-winning blogger since 2003.  Mr. Trout, who was recently featured in the book Radical Transparency for his use of social media in the practice of law, presents some very informative guidelines about how to protect your legal rights and not to infringe on others’ rights while participating in social media. 

“Social media builds community and it builds relationships with people,” Mr. Trout contends, but he warns that there are rules in place in social media that must be observed.  He explains that most social networks do not place their rules and regulations in their terms of service agreements that govern copyright and the use of material found on their networks.  The rules for Twitter might be different for blogs, for example, but one only learns this by using the networks and ascertaining how people interact on the site. 

Mr. Trout explains that blog scraping, the actual copying of material word for word and claiming it as your own, is not allowed on most networks.  But, mentioning a blog post, transforming it, and adding your own bent to it is perfectly acceptable. 

Mr. Trout discusses the popular topic of Fair Use and explains its relation to copyright.  “Fair Use is stronger than copyright,” he explains, because it is protected in the First Amendment Right to Free Speech.  Citing someone’s work in order to criticize it is an example of Fair Use and it is perfectly allowable.  Mr. Trout cites the four criteria that the courts use to determine Fair Use: 

• Purpose.  If you are simply borrowing someone’s work and transforming it into something completely new, that would be acceptable.  But, if you use a work for the same purpose as its creator, that is an infringement.
• Nature.  Citing simple facts is allowed, but not substantial material. 
• Amount.  Are you citing a few facts, or have you copied the entire work?
• Effect on Commerce.  If you are stealing the income of the creator, this is typically not allowed. 

Mr. Trout also discussed Creative Commons licenses that prohibit the use of material for commercial use.  He explains that this is evaluated on a case-by-case basis.  If your blog does not sell advertising and you use a work, you are most likely not violating the license.  But, if you derive income from the use of the work, you are most likely in violation of the license for that product or work even if you give attribution.

Brett Trout is a patent attorney and national speaker on Internet and Intellectual Property Law issues. He is past President of the Iowa Intellectual Property Association and past Chair of the Iowa State Bar Association Technology Committee.

Mr. Trout is author of the world’s first patent law blog. In 2006, Weblog Awards voted his blog, BlawgIT, the sixth best law blog in the world. Mr. Trout was a featured speaker at the 2007 BlogWorld Expo, and is author of several books on Internet Law including his most recent, Cyberlaw: A Legal Arsenal for Online Business.

Brett Trout’s email: Trout @ bretttrout.com

Brett Trout’s site: www.BrettTrout.com
Brett Trout’s blog www.BlawgIT.com
Follow Brett Trout on Twitter: twitter.com/@BrettTrout
Brett Trout on Facebook: www.facebook.com Brett J. Trout

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