Many of the papers for the upcoming Bloggership conference are available on SSRN here. Iâ€™ve skimmed a number of them. One paper in particular I want to talk about is Eric Goldmanâ€™s paper â€œCo-Blogging Law.â€? Hereâ€™s the abstract:
Bloggers frequently combine their efforts through joint blogging and guest blogging arrangements. These combinations may be informal from a social networks perspective, but they can have significant and unexpected legal consequences. This Essay looks at some of the ownership and liability consequences of co-blogging and guest blogging. To do so, the Essay will consider different possible legal characterizations of co-blogging, such as partnership, employment and joint ownership. The Essay concludes with some recommendations to minimize the implications of unexpected legal characterizations, including encouraging bloggers to make private agreements, educating bloggers about their choices, and exercising judicial restraint.
In light of the various liability and ownership issues, the article recommends that co-bloggers either form a limited liability entity or execute a co-blogger agreement. The article does not, however, say which is the best overall option, but I will. In my opinion (and this is not legal advice as the best option for you would depend on your specific facts and circumstances), if your group blog does not sell ads, have a tip jar or otherwise generate revenues, the way to go is a co-blogger agreement. The agreement can fully deal with all the IP ownership issues, allocate liability risk, and preserve an argument that the bloggers are not partners (being classified as partners has adverse potential liability consequences) (see here for some more thoughts). Additionally, as Eric mentions and Eugene Volkh points out in this post, a bloggerâ€™s homeownerâ€™s insurance policy may provide protection for some blog related claims.
From a vicarious liability protection standpoint, a limited liability entity is superior but forming and maintaining one means filing fees, franchise taxes, agent for service of process fees, tax filings, etc. Hence, it comes down to whether the benefit of the liability shield afforded by a limited liability entity outweighs these costs (note also that another cost may be taking your homeownerâ€™s policy out of the picture). In my mind the benefits do not outweigh the costs at least until your blog starts generating revenues. Once the blog starts generating revenues, especially if shared among the bloggers, it is advisable to go with a limited liability entity (probably an LLC) becauses otherwise the blog will likely be considered a partnership. Thus, Eric is correct in advising that â€œ[b]loggers should think carefully before generating revenues from the blog.â€? But clearly there is a tipping point. At some level of expected revenue, it makes sense to form an LLC and go commercial.
As Eric points out, “[e]ven though there are disadvantages both to forming a limited liability entity or to structuring a co-blogger agreement, co-bloggers make a significant mistake by choosing to do neither.” I agree, so maybe I’ll get around to doing a co-blogger agreement for this blog some time soon.