Do comments qualify as “content”?

There seems to be a theme developing around the topic of comments, whether they appear on a blog or on FriendFeed. It sort of started with a conversation about the ongoing issue of fragmentation — in which comments appear on blog posts but then also appear at FriendFeed (and in multiple places on FriendFeed, as commenters on my post noted). Then Hank Williams (no, not that Hank Williams) wrote a post about how comments might even be considered copyrightable content, and Josh Catone wrote one at Read/Write Web about comment ownership — at which point, Steven “Winextra” Hodson launched into one of his trademark rants about how comments are not content.

I’m going to have to disagree with Steven on this one, however, at least from a legal standpoint (although I am not a lawyer, and don’t even play one on TV). As some of the commenters on his post at FriendFeed note, comments on blogs meet many of the tests that would likely be required to qualify as copyrighted content. Whether anyone would be dumb enough — or stubborn enough — to actually pursue such a claim is a separate question, of course. Still, as Mark Trapp points out, most mainstream media sites have a “terms of use” policy that says you effectively allow the site to use your comments, which they wouldn’t have to do if they weren’t legally required to.

I think Steven’s point was more that comments shouldn’t be thought of as copyrighted content, and that they should function more like a conversation in a bar or on a street corner — and I would agree. Legally though, I’m pretty sure they would be considered published content, and are therefore “owned” by their creator, unless he or she gives up that right to the blog or service that hosts them. So could Robert Scoble sue Rob La Gesse for deleting his from FriendFeed?

Update:

Michael Beck points out (on FriendFeed) that these questions have come up before, and points to a discussion here, and also here and here. Meanwhile, Daniel Ha of Disqus — the comment aggregation system I use here — has drawn up a prototype for a “commenters’ bill of rights.”

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