Anchorage Daily News Blogging Policy - 1

I'm calling this ADN Blogging Policy 1 even though I mentioned this in a previous post. There will be a Part II and there I will talk about how the ADN might address blogging. Here I will focus on the Agreement the ADN has sent to the community council seeking bloggers.

CCSecretary from a community council left a comment in my previous post objecting to the legal documents that the ADN wants these community bloggers to sign. Kathleen McCoy, the ADN person in charge of all this, from whom I first learned about this, called me about the post and the comments and has also posted a comment there.

CCSecretary later sent me a copy of the material the community council folks were sent and asked to sign. I’m posting them at the bottom of this post.

My abbreviated thoughts

• The whole newspaper industry is dealing with the changing news landscape and trying to figure out what the newspaper of tomorrow is going to look like and if they can even survive at all. The prevailing wisdom seems to be: get on line. Some understand what this means better than others.

• The ADN staffers, well some of them, have embraced this and are running with it. The management and owners, if they understand concept, don’t seem to understand how to implement it.

• The agreement shows that whoever wrote it up, either doesn't understand this at all, or simply just didn't spend any time on it. It is essentially the agreement that was used for independent writers with a couple of word changes.
  
  
• But no one has thought out the difference between independent writers and bloggers and how that changes what you would want in an agreement. I'll address that in a separate post.
  

Some Highlights of the Agreement

• Pay - while there is a blank where pay can be filled in, Kathleen told me over the phone, that for bloggers, she fills in $0.
• Bloggers get all the rights to the posts, while the ADN keeps the rights to the blog itself. (I'm not sure how that works, and another part implies the blog goes when the blogger goes.)
  
• The newspaper will stop advertising, promoting, publicizing blogs that terminate their agreement. Does that mean they won't link to them either? What about independent blogs? Is this the ADN trying to take over the blog space of Anchorage? Even if that isn't their intention, might it be the result?
  

Quick Overview of the Agreement

Below are a few highlights of the agreement that caught my eye. I’m not an attorney, so if I’m misreading something, or missing something, any attorney reading this, please is invited to point it out in the comments. I would also add that Kathleen says that she’s asked for feedback on this and they are willing to make changes. I could just send this to her rather than posting it. But I told her, that since this is an evolving idea, in the interest of people in Anchorage and elsewhere being able to see how the process unfolds, that I would make my comments online. Afterall, others may offer much more productive comments than mine.

Section 1 says the blogger isn’t supposed to steal his material or reveal trade secrets etc. That is reasonable, though I wonder if the blogger does this unintentionally whether this shifts all the liability away from the newspaper and onto the blogger. (Again, for actual language, see the whole agreement below.)

2. Ownership. As an author of the Blog, you own and will continue to own all rights, titles and interest in and to your Blog posts, including all copyrights and other intellectual property rights therein and all renewals and extensions thereof, in all formats and media, whether not known or hereafter developed, throughout the world in perpetuity. NEWSPAPER shall own all right, title, and interest in and to the ___________________.com web site, and all intellectual property rights relating thereto. All rights not expressly granted under this agreement are expressly reserved.

This seems to say that the blogger will own all the rights to the content, but the newspaper owns all the rights to the blog name. But what does “and all intellectual property rights relating thereto” mean? OK, there’s the blog name and the site itself, but if the blogger owns all the posts, is the ADN claiming some overlapping rights? Plus, this seems to contradict language below where it says if the agreement is terminated, the ADN won't publicize the blog anymore.

3. Licenses. For the duration of this agreement you grant NEWSPAPER an irrevocable, worldwide, royalty-free, paid-up, transferable license, in perpetuity, to reproduce, distribute, publicly display, perform, and publish your Blog, including a license to redistribute, reproduce, republish, and to authorize republication, reproduction, and syndication of all or part of the Blog in any database, in any other media or platform or by any other method (computer, electronic, magnetic, online, optical, video, CD-ROM or otherwise), now or hereafter invented. NEWSPAPER shall have the right to modify the Blog content in order to make it compatible with the technical requirements and the “look and feel” of it’s web site. You grant us the right to use the Blog name, your name, likeness, photograph and biographical material to advertise, promote and publicize you and your Blog for the purposes of promoting and introducing new users to the Blog. You also grant us the right to link to the Blog from one or more Web sites owned or managed by NEWSPAPER. NEWSPAPER shall have the right to remove any content from the Blog or it’s [sic] web site that NEWSPAPER believes, in its sole discretion may violate the rights of any third party, violates any law, or is otherwise objectionable.

Here’s where the legalese gets silly. “For the duration of this agreement you grant NEWSPAPER an irrevocable….license in perpetuity…” Does that mean in perpetuity for the duration of the agreement? If it does, what does that mean? Or did someone forget to drop the in perpetuity when they copied it from another agreement?

And then, either for the duration of the agreement or in perpetuity, the newspaper can use the blog to make money in all sorts of different ways. And the newspaper can change the content of the blog anyway it wants if it decides - I assume that in its sole discretion means the blogger has no say - if it deems it, among more reasonable reasons, “otherwise objectionable.” Is there any chance a blogger who makes lots of money for the ADN would share in that?

4. Fees. NEWSPAPER will pay you a fee of $__________ per week to support your blogging and will host, maintain and operate your Blog service free of charge.

Kathleen says she will fill these in with $0. She also says that eliminates the need to ask for the social security number (which CCsecretary objected to also).

5. Term and termination. This agreement begins on _______________, 2007 and shall continue in effect until ___________________, 2008 (the “Term”). Either party may terminate this agreement for any reason upon thirty (30) days prior written notice. Upon expiration or termination of this agreement for any reason, you shall promptly remove any of NEWSPAPER’S brands or trademarks from the Blog. Also, in the event that this agreement ends, NEWSPAPER will stop within 30 days any advertising, promotion or publicizing of the Blog from any Web sites owned or affiliated with NEWSPAPER. NEWSPAPER will then make a final remittance to you of any outstanding fee payments.

If the newspaper owns the title of the blog and the blog itself, why would it require the blogger to stop using ADN brands or trademarks? and why would the ADN stop advertising the blog? They just need to get another blogger to do the work. But maybe this means the earlier stuff about the newspaper owning the blog title was a mistake. It’s confusing.

This section also raises a concern for non-ADN blogs. Does this mean that once ADN has its own affiliated blogs it will stop linking to blogs like mine? The ADN links to my blog during the trials this year, significantly increased my blog traffic. Those links brought my blog to the attention of many people who otherwise would not have seen it. This policy seems to says, “if you leave us, we’re never going to link to you and no one affiliated with us will link to you.” But maybe I'm reading too much into "publicize." Since it is talking about blogs that terminate their agreement, that leaves room for them to link to blogs like mine that have never had a written agreement, but will they? Are they now trying to corner the blog market in Anchorage? I strongly doubt that is Kathleen’s intention, but is it corporate’s intention?


The Whole Agreement (this is a draft as I understand it, but they did send it out to Community Councils)

[The Agreement itself is posted in its entirety. They also sent along the Terms of Use for people commenting on the ADN Blogs. Click on the link to see those.]


Date: ________________

Dear __________:

This letter confirms the agreement between you and ____________________ (“NEWSPAPER”) concerning the Blog that you will write titled _____________________, which will be published and promoted by NEWSPAPER on its web site ____________________.com in accordance with the terms hereof.

This letter is effective during the Term (as defined in Section 5 below) or until it is terminated by either of us in writing, and is applicable to all blogging during the Term. Our agreement includes the following:

Description of contribution. You are the author of the Blog, which focuses on __________________________________________________________________, as well as other topics of your choosing. The general focus of your Blog will continue as described above unless you provide NEWSPAPER with thirty (30) days prior notice that it is substantially changing. During the Term of this Agreement, you shall update your Blog with new posts a minimum of ____________ times per week. You agree that you will not, during the Term, publish another Blog relating to the above referenced focus, and that this will be your only blog on the topic.

You warrant and represent that all written entries and all other materials posted to the Blog is your original work, free from plagiarism, and that it has not been published anywhere else, that it has not been assigned, licensed or otherwise encumbered anywhere else, that it is not libelous or defamatory, that it will not violate or infringe the copyright, patent, trademark, trade secret, right of privacy or publicity, or any other proprietary right of any third party. You also agree to refuse any compensation from any third party for placing any content on the Blog, to not use the Blog posts as a vehicle for advertising or promoting goods or services, and to not knowingly link to any downloadable applications or other content which may be harmful to a user’s computer.

Ownership. As an author of the Blog, you own and will continue to own all rights, titles and interest in and to your Blog posts, including all copyrights and other intellectual property rights therein and all renewals and extensions thereof, in all formats and media, whether not known or hereafter developed, throughout the world in perpetuity. NEWSPAPER shall own all right, title, and interest in and to the ___________________.com web site, and all intellectual property rights relating thereto. All rights not expressly granted under this agreement are expressly reserved.

Licenses. For the duration of this agreement you grant NEWSPAPER an irrevocable, worldwide, royalty-free, paid-up, transferable license, in perpetuity, to reproduce, distribute, publicly display, perform, and publish your Blog, including a license to redistribute, reproduce, republish, and to authorize republication, reproduction, and syndication of all or part of the Blog in any database, in any other media or platform or by any other method (computer, electronic, magnetic, online, optical, video, CD-ROM or otherwise), now or hereafter invented. NEWSPAPER shall have the right to modify the Blog content in order to make it compatible with the technical requirements and the “look and feel” of it’s web site. You grant us the right to use the Blog name, your name, likeness, photograph and biographical material to advertise, promote and publicize you and your Blog for the purposes of promoting and introducing new users to the Blog. You also grant us the right to link to the Blog from one or more Web sites owned or managed by NEWSPAPER. NEWSPAPER shall have the right to remove any content from the Blog or it’s web site that NEWSPAPER believes, in its sole discretion may violate the rights of any third party, violates any law, or is otherwise objectionable.

Fees. NEWSPAPER will pay you a fee of $__________ per week to support your blogging and will host, maintain and operate your Blog service free of charge. You are providing your works to NEWSPAPER as an independent contributor and will therefore be responsible for the payment of all federal, state and/or local taxes with respect to this fee. NEWSPAPER will not treat you as an employee for any purpose.

Term and termination. This agreement begins on _______________, 2007 and shall continue in effect until ___________________, 2008 (the “Term”). Either party may terminate this agreement for any reason upon thirty (30) days prior written notice. Upon expiration or termination of this agreement for any reason, you shall promptly remove any of NEWSPAPER’S brands or trademarks from the Blog. Also, in the event that this agreement ends, NEWSPAPER will stop within 30 days any advertising, promotion or publicizing of the Blog from any Web sites owned or affiliated with NEWSPAPER. NEWSPAPER will then make a final remittance to you of any outstanding fee payments.

Indemnification. You agree to defend, indemnify and hold harmless NEWSPAPER and its affiliates, employees, successors and assigns, against and from any and all third party claims, liabilities, damages, fines, penalties and/or costs of whatsoever nature arising out of or in any way connected to a breach of your representations and warranties under this agreement.

Miscellaneous. This Agreement shall be governed by and construed under the laws of the State of _________________. No waiver, amendment or modification of any provision hereof or of any right or remedy hereunder will be effective unless made in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. Neither this Agreement nor any right or obligation hereunder may be assigned by you, and any attempted assignment will be void. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the parties hereto with respect to the subject matter hereof. In the event that any provision of this letter shall be held to be unenforceable by a court of law, the remaining provisions of this letter shall be enforceable to the maximum extent permitted by law consistent with the expressed intent of this letter.

If this agreement is acceptable, please sign and date the enclosed copy of this letter, provide your social security number, and return the signed copy to me.
We look forward to working with you!

Sincerely,



Agreed to by: ________________
__________________________ ______________________________
Signature
__________________________ ______________________________
Printed Name and Social Security No.
__________________________ ______________________________
Date