Getting Consent Is Key for Hyperlocals Relying on Crowdsourced Content

A New York Federal Court decision on March 30, 2012 favoring The Huffington Post may help cut hyperlocal publishers’ risk in relying on crowdsourcing, user content and citizen journalists to supplement content on their hyperlocal sites. But hyperlocal pubishers cannot rest easy unless they make sure they button down their rights to use contributor content.

In a highly publicized case, freelance writer Jonathan Tasini and others writers filed a class action lawsuit against AOL and Huffington Post claiming that they were entitled to a share of the $315 Million that AOL paid to acquire Huffington Post. They claimed that their contributions and articles — which they provided without compensation — contributed to the value of Huffington Post. AOL and Huffington Post moved to dismiss the lawsuit.

On March 30, 2012, Federal Judge John Koeltl dismissed the class action lawsuit, finding that “there is no question that the plaintiffs submitted their materials to the Huffington Post with no expectation of monetary compensation and that they got what they paid for — exposure in the Huffington Post.”  The key in the ruling was Huffington Post’s terms of service, which provided that the contributors were not entitled to compensation. “No one forced the plaintiffs to give their work to The Huffington Post for publication and plaintiffs candidly admit that they did not expect compensation,” Judge Koeltl added.

Likewise, hyperlocal publishers must ensure that they secure rights from their contributors to use the content — and to make clear whether a contributor is entitled to compensation. Copyright law confers ownership of content on the original author of the content (except in employment circumstances where the publisher automatically owns the content). The copyright owner solely controls how the content may be distributed.

The key is to get permission to use the content, which can be accomplished by having the contributor consent to terms that allow hyperlocal publishers to use and even syndicate the content. Hyperlocals can get consent electronically, through “click through” agreements. Federal laws such as E-Sign and states that have adopted the Uniform Electronic Transactions Act give the same force and effect to electronic agreements as if they were in writing. However, to make it work, contributors must assent to terms after having an opportunity to review terms. This could be accomplished by telling a contributor that clicking “I agree” means they agree to the terms, which typically are presented as a link to the terms, which can be reviewed by a contributor.

Click-through agreements repeatedly have been enforced, including in a recent lawsuit in New York involving Mustafa Fjeta and Facebook, in which the Court found that a Facebook user was subject to Facebook’s click through terms of service. The Court pointed out that the “aspect of a click wrap agreement ensoures that potential licenses are presented with the proposed license terms and forced to expressly expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”

On the other hand, relying on a terms of service link at the bottom of a web page, known as “browsewrap” licenses, without requiring a user to click through them, may not do the job for hyperlocals.  For example, a federal court in Virginia last fall refused to enforce a  “browsewrap” licenses. In a lawsuit involving Cvent and Evenbright, the court pointed out that the passive “terms of service” link was not enforceable because users were not required to agree to the terms and users likely did not have knowledge that the terms would apply to them.

The moral “for” the story: make sure contributors know that they are giving consent to use their content.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.

Image courtesy of Flickr user boellstiftung.

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