Good News/Bad News About the Number of Blogs Eligible for the 17 USC 512 Safe Harbor
By Eric Goldman
My 2006 article about blog law included the following passage (footnotes omitted):
few blogs satisfy the numerous technical prerequisites for § 512 eligibility, such as registering their websites with the U.S. Copyright Office. To assess this, on April 18, 2006, I searched the Copyright Office’s database of § 512 registrations and found only ten registrations containing the word “blog.”
In preparing comments on the Copyright Office’s proposed amendments to the 512 designation of agent requirements, I decided to redo this pseudo-empirical study. On November 3, I went to the Copyright Office’s database of registrations and searched for the character string “blog” in the name of the registered names/websites. I came up with over 200 hits. At the bottom of the post, I lay out the numerical details.
[Procedural note: I know this methodology is a hack. First, the Copyright Office has a lag of weeks/months between filing and publication. Second, many blogs don’t have the word “blog” in their title for registration purposes but may be covered nonetheless. Third, a single entity might be counted multiple times in my count; for example, Weblogs, Inc. counted as at least 3 hits. Fourth, I’m not even sure what constitutes a “blog” any more. I’m sure there are many other objections. The count isn’t super-precise. It’s more of a directional indicator.]
Thus, the good news is that my 2011 census produced more than 20x the number of hits I got five years ago. Clearly the word has spread in the blogging community of the value of filing for 512 protection. But, the bad news is that even if 200+ blogs are covered by the agent designation–and therefore have satisfied one of the formalities prerequisites for a 512(c) safe harbor–it’s a tiny fraction of the blogs that might ultimately want the 512 safe harbor because, for example, they allow user comments. Indeed, Righthaven repeatedly sued defendants over user-uploaded articles/comments to blogs and websites that hadn’t made the requisite filing and therefore couldn’t claim the safe harbor at all. So while it’s heartening to see the growth in blogs eligible for 512 coverage, the overall number of covered blogs remains disconcertingly low.
FWIW, as a personal note, this blog isn’t covered by a 512 designation of agent. I’m obviously aware of the statute, but comments have been off since 2006. The only posts that might be covered by my 512 filing are those of my co-bloggers, such as Venkat, and I’ve decided to take the risk that they will post infringing material and that a 512 designation would have been available in the co-blogger situation.
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The number of times the character string “blog” appeared per letter in the Copyright Office database: A – 2 // B – 50 // C – 12 // D – 6 // E – 1 // F – 7 // G – 6 // H – 16 // I – 6 // J – 1 // K – 6 // L – 6 // M – 13 // N – 9 // O – 1 // P – 10 // Q – 0 // R – 4 // S – 13 // T – 9 // U – 3 // V – 1 // W – 23 // X – 0 // Y – 1 // Z – 3 // Other – 0. Total = 209.