Who Owns Scobleizer?

Last week I co-hosted an event with the folks from Levensohn Venture Partners on corporate blogging. Our guests were Robert Scoble and Shel Israel, who talked about their book Naked Conversations and about the impact of blogging on the corporate world. We invited entrepreneurs from the August and Levensohn portfolio companies to the event, as well as some friends of our respective firms who were particularly interested in the evolution of blogging as a marketing medium. The conversation was an enjoyable one. And Shel and Robert were incredibly gracious, even when I accused them of being "full of shit" (which, of course, I meant only in the most positive sense of the phrase). But the content of the evening's conversation is not what's presently on my mind. Robert Scoble himself is.

Robert Scoble is a gregarious, affable guy. He enjoys himself and, in return, he makes those around him enjoy themselves as well. He's a voracious reader and a voracious writer. And, as a result of all of those traits, has become one of the first celebrities of the blogsphere. Robert's blog, Scobleizer, is read by hundreds of thousands of people. It has the capacity to drive huge traffic to the web properties he cites. But, more importantly, for the longest time, Robert Scoble's blog has been synonymous with "The Microsoft Blog." In fact, search Google for "Scobleizer" and what comes up is "Scobleizer: Microsoft Geek Blogger." Robert Scoble was, for all intents and purposes, the Microsoft blogger.

About a week ago that all changed. Robert Scoble left Microsoft and joined a new media startup called PodTech. He took with him his celebrity. He took with him his authority. And he took with him Scobleizer, his blog.

Ever since Scoble left Microsoft, I've been thinking about the question of who owns Scobleizer. After all, didn't Robert write Scobleizer during work hours, using Microsoft's computers? In fact, wasn't it Robert's job at Microsoft to write Scobleizer? Didn't Microsoft pay him thousands of dollars in salary, and thousands more in travel expenses, to represent Microsoft in the blogging world and to do so, at least in part, by writing Scobleizer?

While I don't have Microsoft's agreement handy, here's some standard language from a form employment agreement with regard to the creation of copyrighted works:

Assignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the service of the Company (collectively referred to as "Intellectual Property") and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to the actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act.

I imagine that Microsoft's employment agreement has similar language. It says, in essence (for the non-lawyers out there), that anything an employee writes (1) while employed by the employer, (2) using the employers equipment, supplies and facilities, and (3) related to the business of the employer, is owned by the employer. It makes perfectly good sense and seems pretty squarely to apply to Scobleizer. (For those of you out there saying to yourselves, "isn't there an exception when an employee had developed the intellectual property prior to joining a company?," that is certainly true but would only apply to the portions of Scobleizer written before Robert joined Microsoft.) So doesn't Microsoft own Scobleizer?

I raise the question of who owns Scobleizer, not because I think that Microsoft should enforce its rights in Scobleizer, but because I think that it raises an important question about corporate blogging. If corporate blogging is about allowing employees to express their genuine voices and to attract audiences for the company's products by virtue of that blogger's own voice and message, won't companies continuously face the problem that the "good will" that comes from corporate blogging will attach to the individual bloggers rather than the corporation. I am willing to guess that PodTech paid mightily for the good will that Robert Scoble brought with him to his new company.

The challenge for corporations is that the standard wisdom when it comes to corporate blogging is to empower individuals to speak for your company. Corporations are urged to allow employees and executives alike to speak for the corporation in their own non-scripted way. This is precisely what Robert and Shel promote in Naked Conversations, and reiterated at the August/Levensohn dinner last week. Yet, as can be seen in the "who owns Scobleizer?" quagmire, allowing employees to speak on the company's behalf in a way that promotes the blogger at least as much as it promotes the company, can be perilous. Corporations may spend thousands of dollars to establish credibility, only to see that credibility walk out the door.

So was it really in Microsoft's interest to pay Robert Scoble thousands of dollars to write Scobleizer, only to have him take it with him when he left the company? Probably. Scoble made great strides in humanizing an otherwise reviled corporation. But as we continue to evolve our think about blogging as a corporate marketing medium, it will be important for companies to think carefully about who can blog on the company's behalf and in what manner. Wouldn't Microsoft rather have a Microsoftizer than a Scobleizer next time around? It is time for executives to think more strategically about blogging and its long term effects on their business and competition in the marketplace. In the mean time, it may be time for me to start Hornikizer: August Capital's Freak Blogger.

Comments

[Christoph Jaggi]

It seems fairly obvious that Robert owns Scobleizer, as he created and used it before signing on with Microsoft. He might not be the Microsoft Geek Blogger anymore, but he is still Scobleizer. The content created during his emplyoment with Microsoft might be another ballgame.
If there is any lesson to be learned then maybe that companies should have their corporate bloggers blog on a company-owned website.

[Matt Marshall]

David, what did Robert say about this?

[Dave]

>>In the mean time, it may be time for me to start Hornikizer: August Capital's Freak Blogger.

... um, not if you want to keep your job, that is ;)

- dave mcclure

[David Hornik]

Maybe he owns the name Scobelizer but it turns out that the vast majority of company IP Agreements require the employee to grant a license in the IP that the employee continues working on once he begins his employment. So even if Scoble owned the name before getting to Microsoft, he would still have to grant Microsoft a license in everything before he became employed by Microsoft and Microsoft would own everything after.

Unfortunately, I didn't think to ask Robert what he thought about the idea that Microsoft might own Scobleizer. I wish I had.

As for Hornikizer, you are absolutely right Dave. One of my partners told me today that after reading my blog post he wanted to be very clear that he did not in any way want to be associated with me or anything that I write. So Hornikizer is all mine : )

[antoniocapo]

Blogging on a company owned website - good point. But also there are people that will blog in their personal blogs about work and outside of office hours. So, where to draw the line? It really becomes blurry.

[geofones]

Robert always made it clear it was HIS personal blog, firstly hosted on Radio Userland latterly on Wordpress. In fact, certainly early on, he only did entries in his own time and he never was a 'official' Microsoft blogger. I always thought it was a smart move for both parties - Microsoft could disown Robert and equally Robert could leave taking his brand with him.

[Davis Freeberg]

I think that you probably have a good technical argument but part of what makes a blog a blog and not a website is the personal nature to it. A company can own a website, but they can't own a blog because it's the author that makes a blog so authentic. Scoble's commitment to speak his mind openly and honestly with his readers is what made his blog so authentic, not some fancy URL. Microsoft understands the importance of that authenticity and I doubt that we would ever see them try and exercise those technical rights. They know better then anyone that if they tried something that dumb that it would be a very scary episode of when blogs attack, going after Scoble would be like feeding red meat to hungry sharks who are waiting for their next controversy. You can take the domain name, but you can't replace the contacts, community and the personality that make up a blog.

[Josh Kopelman]

Very interesting point...

I wonder - does this mean that August Capital owns VentureBlog?

[Christoph Jaggi]

Getting Robert's thoughts on that subject would be indeed interesting.
"...and Microsoft would own everything after": Not really. In the best possible case for the employer, just the content that was written during the emplyoment.
Scobelizer is part of Robert's persona and unless explicitly acquired by Microsoft should be still the sole property of Robert. An employer might acquire a limited right for certain, limited aspects of the persona during the emplyoment, but it is highly unlikely that aspects of the persona would fall under the IP assignment.

[charlie]

eh, this is nothing new. writers have had to deal with this in all sorts of media. basically, dave, you're right that microsoft 'owns' the content, just as much as nyt 'owns' saffire's columns.

but, just like nyt, microsoft should have been prepared for the day when their star columnist would leave. just like nyt, they should be able to hand over the popular column to an equally capable writer.

if i am not mistaken, gawker navigated this very issue when losing a few top writers. and i am sure that other media outlets from tv to magazines to newpapaers have to deal with this on a regular basis.

really, nothing new here exepct the participants.

:-)

yeah, and i lived in this world and experienced it myself and find it interesting that so many issues brought up by main stream media could be useful here (in the blogging world). ironic, huh?

[Martin Wells]

I agree the company owns the material, but with the NYT "column" argument, shouldn't Microsoft retain the RSS feed and web URL? Then we could see another blogger step in and fulfill the role.

The mistake was that Microsoft didn't own the blog in the first place. Though it's forgivable since the blog obviously grew in popularity organically, Microsoft couldn't see it coming -- and if they did it was too late already.

Robert however can't really walk away from the fact that he has now personally benefited from this. I think the ethical thing to do would be for him to hand over the blog to MS, make a new one, and with Microsoft's permission, announce the new address. All of which is never going to happen.

For company's that want to have their employees write blogs they should make sure it's clearly a company owned site/feed which has one or more "writers". If the person gets famous that's still fine. When the writer leaves they can replace them.

[ビブラム]

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[beats by dre store]

away from the fact that he has now personally benefited from this.