The first reported decision on the subject of bloggers as journalists has been rendered. This is important due to statutory protections that may exist for journalists.

In BidZirk v. Smith, a pro se blogging defendant beat back a lawsuit from an eBay listing company that alleged, among other issues, trademark infringement due to use of the mark by Smith of BidZirk on his blog. Smith responded by saying he could use the mark as a journalist. The decision and analysis are at the Citizen Media Law Project and is also written up by Eric Goldman and Marc Randazza. Since I've now been threatened by Avis over use of its logo on my blog, this has become of interest to me.

[The issue of the blogger-journalist also presented itself in another context recently when Howard Bashman refused to remove a Second Circuit Court of Appeals decision that had been published by the court, then placed on the blog How Appealing, and that the court sought to recall.]

US District Judge Henry Herlong, Jr., sitting in the District Court for South Carolina, wrote the following with respect to bloggers as journalists:

Even if Smith has infringed BidZirk's mark, the court finds that this infringement is excused by a statutory defense. Under §1125(c)(4)(C), no "forms of news reporting and news commentary" are actionable under §1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist.

However, in determining whether Smith was engaged in news reporting or news
commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging; (Pls.' Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY .

Upon review of the content of the article, the court finds that Smith's use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. (Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. (Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary.

There is no evidence that the sole purpose of the article was to denigrate BidZirk.
follows:

This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before.

(Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) Smith engaged in background research and provided consumers with a checklist for use in selecting a listing company. Smith's article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist and BidZirk's Lanham Act claim fails as a matter of law.

This post may be a substantial deviation from New York personal injury law, but it seems to be a worthwhile one.

Labels: First Amendment