The shift has taken place due to the increased presence of commenting and feedback features on news websites, and partly thanks to the use of comment-friendly platforms such as WordPress. In these contexts, the news outlets have chosen to accept user comments, and they retain a certain amount of control over which ones appear on their site. Now, a new technology, Google's Sidewiki annotation tool, is poised to present a challenge to website owners, including news outlets, that attempt to control the interface between their site and end users. Suddenly, they won't have as much control over comments related to their content.

And that change in control might lead to some legal tussles down the road.

Google Sidewiki

Google debuted Sidewiki in September. The tool permits users of the Google toolbar to write comments about any website they visit. These comments are then visible to other Sidewiki users when they navigate to the same page. But the comments are hosted by Google, rather than the website itself.

The Google Sidewiki site provides a graphic depiction of what a Sidewiki entry looks like. When the Sidewiki button on the Google toolbar is clicked, a sidebar opens to the left of the webpage and displays the comments entered by Sidewiki users.

Usually, a website's publisher decides whether or not to provide comment functionality, and if such functionality is provided, the site's owner retains the ability to delete unwanted comments. But a website operator has virtually no control over the Sidewiki functionality. This is something of a major shift.

Attack of the Commenters

Some websites have already been the subject of negative Sidewiki comments. In a September 24 blog post on Econsultancy, "Google Sidewiki: Brands under Attack," the author included examples of Sidewiki comments on the Microsoft and Apple websites. Microsoft products were described as "useless" and "crap," and Apple was slammed for "lying" and shipping products with "severe bugs."

Another example comes from a September 24 comment on the website of the Daily Mail. A commenter named "supaswag" wrote, "Why?? ... would you read this sad toss? Don't you have more important things to do? Seriously ... you'll find better/proper news here..." The link included in the comment led to the website of a Daily Mail competitor, the Guardian.

Responding to Sidewiki

A website owner is given few options to respond to comments like those listed above. Website owners can claim their sites through the Google Webmaster functionality, and thereby gain access to the top comment spot on Sidewiki. This means they can add whatever content they wish to the thread about their site(s). Other user comments are sorted according to a secret Google algorithm that takes into account the responses of Sidewiki users to the question of whether or not a particular comment is "useful," among other factors.

Google has a Sidewiki content policy that prohibits spam and malware, threatening, harassing and sexually explicit comments and the like. But commercial content in general is not prohibited, only "unwanted promotional or commercial content" (which is included in the definition of spam). It is not clear by whom the promotional or commercial content must be "unwanted" in order for it to constitute spam.

There is a link for reporting abuse, but the link leads to a form that is available to any Sidewiki user; it does not appear that website owners themselves are given any priority when it comes to communicating concerns to Google.

Sidewiki and the Law

One of the legal issues raised by Sidewiki is whether it intrudes upon the rights of website owners to control their interface and interactions with users. A similar type of technology that comes to mind is pop-up advertisements. Web users have become accustomed to seeing pop-ups -- and equally accustomed to blocking them. But several years ago, the ubiquitous and intrusive nature of pop-ups led a group of media companies to join in a litigation effort against Gator. Gator distributed technology that enabled the delivery of pop-up advertisements on websites without the permission or participation of the sites' owners.

The media company plaintiffs, as well as other plaintiffs in similar lawsuits, took the position that the pop-up advertisements violated trademark law. The media companies were successful in obtaining a preliminary injunction, and the litigation was eventually settled favorably. The company that distributed the pop-up technology is now out of business. As a result, there was never a definitive resolution of the issues raised in that case.

The lawsuits related to trademark law were based upon the fact that the pop-up functionality was being used to deliver commercial advertising, which presents a different set of legal considerations. But what if the comments that appear next to a site via Sidewiki are non-commercial comments by users, rather than commercial messages? Legal challenges by site owners to Sidewiki may be complicated by the fact that Sidewiki facilitates all kinds of messages, both commercial and non-commercial.

Has Sidewiki Got Legs?

Sidewiki is not the first or only service of its kind. Services such as Draw Here, Fleck, Trailfire and MyStickies have offered website annotation capability for a few years, but none of these services have garnered widespread adoption. (One annotation startup, ReframeIt, claimed recently that Google appropriated its patented technology in creating Sidewiki.)

Right now, Sidewiki users appear to be relatively few, and the technology presents some barriers to widespread use. In order to see Sidewiki comments, a user must install the Google Toolbar and its enhanced features. And a user must also be logged in to a Google account in order to use the Sidewiki functionality.

But being the media giant that it is, Google may have the capacity to bring Sidewiki, and website annotation, into mainstream use. If that happens, online news outlets, along with other websites, may find that the dialog on and about their sites is increasingly controlled by Google. And that could result in some interesting legal issues for all parties.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

One exchange of note came between Rupert Murdoch and Arianna Huffington, who spoke separately but did a good job of representing two divergent points of view. Murdoch kicked things off with a paean to paid content.

"In the new business model, we will be charging consumers for the news we provide on our Internet sites...The critics say people won't pay," he said. "I believe they will, but only if we give them something of good and useful value. Our customers are smart enough to know that you don't get something for nothing."

He also took aim at aggregators and websites that he said misappropriate content.

"Some rewrite, at times without attribution, the news stories of expensive and distinguished journalists who invested days, weeks, or even months in their stories, all under the tattered veil of 'fair use,' " he said. "These people are not investing in journalism. They are feeding off the hard-earned efforts and investments of others. And their almost wholesale misappropriation of our stories is not 'fair use.' To be impolite, it's theft."

Later, Huffington took her turn at the mic.

"It amazes me that Murdoch and Brill and the pay wall team at the [New York] Times continue to believe that people are prepared to pay for news online, despite the recent survey showing that 80 percent of U.S. news consumers say they wouldn't bother to read news and magazines online if the content were no longer free," she said.

Huffington also stood up for citizen journalists, bloggers, and other groups that she felt were maligned by Murdoch. "The contributions of citizen journalists, bloggers, and others who aren't paid to cover the news are constantly mocked and derided by the critics of new media who clearly don't understand that technology has enabled millions of consumers to shift their focus from passive observation to active participation -- from couch potato to self-expression," she said.

Their speeches were only a small part of the event, and we've culled the best and most interesting tweets about the workshop to offer a sense of what struck home with people. We removed the #ftcnews hashtag from most of these tweets, and cleaned up some typos. You can read the raw feed of tweets on the workshop by going to the Twitter hashtag #ftcnews.

Morning Session: Day One

ereuben RT @jeffjarvis: Murdoch: "Let aggregators desist +start employng own journalists." Let news orgs desist & do own mkting, then. <YES

DebGH Good to see all players in one place at FTC hearing, but seems the usual suspects are giving us the usual spiel. Where's the "wow"?

AccuracyInMedia A question? Someone got to ask a question at #ftcnews? Oh, wait, it was just FTC Chair Jon Leibowitz. Way to engage the public!

Riversiderider No consumer groups reps here. Only biz insiders & professors paid by donors.

TonyFratto RT @jeffjarvis Scripps brags about building a new printing plant in Florida. // Building it next to the typewriter factory, I hear.

amandachapel @javaun "The low barrier to entry means amateurs can hop on, but there pros here too" Like water and a farmer watching a tsunami.

candacejeanne We are 1 month away from 2010. Here's a #newyearsresolution: Let's finally stop calling it "new media."

jeffjarvis FTC bureaucrat: you are leading the witness and betraying your legacy protectionist prejudice.

DebGH Finally: News media biz models must have quality product for success -- crap in a fancy package is still crap.

spj_tweets Huffington at #ftcnews: calling aggregators parasites and thieves is the news industry equivalent of "your momma wears army boots."

javaun Huffington: having glenn beck not searchable on google is good for democracy, bad for business.

jen_mcfadden Arianna might be giving the ballsiest FTC testimony ever.

paidContent Murdoch: Ask consumers to pay for products they consume. Gov't power should promote innovators, not prop up failure.

Afternoon Session, Day One

jcstearns Irony of pundits who tell govt. stay out of journalism & lobby for policy changes benefiting them bit.ly/6EDovD via @jeffbercovici

jpshankle Trying to tweet fairly neutral but not clear if most presenters understand aggregators, links, or internet conceptually at all

Danny_Glover Lem Lloyd of Yahoo just used the word "taxonomy" at #ftcnews, so I'm officially tuning him out. Unofficially, I've been bored a while.

SaveTheNews Brill: "The whole idea of government makes me uncomfortable except for the IRS reforms Len Downie describes."

yelvington In the boom years, the Net was occupied by rainbows and ponies. Now it's full of vampires and kleptomaniacs.

Edgecliffe Robert Thomson: govt handouts would create new class of content concubines

LeavittDC Solid advice from Reuters: "Stop replicating things that are already done by people who, frankly, do it better than you."

SaveTheNews People keep talking about the low bar of entry to online publishing but roughly 40% of America doesn't have high speed internet.

jcstearns Mike Bloxham says those of us who frequent future-of-news events like #FTCnews are freaks of nature. / Knowing laughter in the room.

spj_tweets From #ftcnews: Are newspapers like typewriters (i.e. dead) or bicycles (i.e. adaptable and vibrant)?

sydneyin140 Can someone explain why FTC can hold a thoughtful wkshop like this while the FDA still thinks the internet is radio with pictures?

Blasiol2_uwm #ftcnews is ravaging my thesis topic.

Morning Session, Day Two

jessdrkn Rosenstiel: revenue of newspaper from print is like sands of hour glass where one day it will be gone

bobwyman The faith in "Journalistic Exceptionalism" is no more healthy than are the many similar nationalistic or faith based prejudices.

AccuracyInMedia Rep. Henry Waxman now speaking about "the future of journalism," and he's not even on #Twitter. Clueless and backward.

dannysullivan Government's going to have to be involved in one way or another. waxman on journalism reform #ftcnews no he didn't say obamapaper :)

jen_mcfadden I'm sorry, Rep. Waxman, it will be solved by itself. It's called capitalism. Bring on the start-ups.

tgdavidson Dumb thought of the day, from Waxman: Have cities fund news! How might that work in Balt., Mayor Dixon?

wrldtree Interesting presentation at #ftcnews by Gentzkow that show that newspaper closings leads to less voting, at local and national levels.

jen_mcfadden "Journalism encourages people to act in their role as citizens" So do new tools like seeclickfix.com - need to think more broadly

tgdavidson More proof the #futureofnews won't be created at a conference: RT @jcstearns Only two software developer in the room at #FTCnews

jessdrkn Eric Newton, Pres, Journo Program, Knight Foundation: journalism does not need saving, so much as creating

Tracyvs The Big O!, Recipes, and Networks: What the FTC's Journalism Summit isn't Talking About http://bit.ly/6Pcwae

pilhofer Starting the Joaquin Alvarado fan club. The guy utterly, totally, completely gets it.

alisaamiller Eric newton fr knight. It's professional ethics. It's about firewalls. The fear of more govt funding and prejudicing content =bogus

Afternoon Session, Day Two

keverhart Pubcasting reform workshoped by FTC panel: there's more to it than expanding newsrooms. http://tinyurl.com/yb2qwz2

digiphile Spotty wifi fix: Stenographer tosses 3G USB modem to US CTO Chopra, who hands it to @pilhofer & @ericuman. Public-private coop FTW!

SaveTheNews At #FTCnews @pilhofer says "I'm a reporter by trade and a nerd by avocation"

sydneyin140 Journalism not content, it's what people take into their minds and hearts. It took 2 days at #ftcnews before anyone used the word "story."

sdkstl PBS.com's Seiken: added a "failure" category to performance reviews. If an employee doesn't fail enough, gets marked down.

sydneyin140 Oh dear, bdcst union rep missed the memo: "A person tweeting from a news scene is not a journalist."

martindave Missing from the debate: Not enough diversity focus on serving the truly needy in our society. Poor, elderly, youth esp children.

PotatoPro My view: journalism may turn from a job into a skill. Like "public speaking" you write in you area of expertise

jmhaigh To recap #FTCnews this will get sausaged into summary doc, consensus points highlighted, collab w/FCC & proposals @ part deux, springtime?

densmore53 Aggregation of #ftcnews FTC journalism event running notes at: http://bit.ly/5ymuoj #rji

Jessica Clark directs the Future of Public Media project at American University's Center for Social Media. There, she conducts and commissions research on media for public knowledge and action, and organizes related events like the Beyond Broadcast conference. She is also the co-author of a forthcoming book, "Beyond the Echo Chamber: Reshaping Politics Through Networked Progressive Media," due out from the New Press in February.