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Cuban would define a "splog" as follows:

A splog is any blog whose creator doesn't add any written value. I'm sure some might argue that packaging data, such as news feeds or the blog posts of others is added value. I dont think it is. After all, thats why there are topics and indexes. If I want information about the Dallas Mavericks, I can search for it, optimize it, and save it. Because indexes are based on freshness, my searches are automatically updated, freshest data first, as new posts are introduced.

If you've ever used a blog search engine to search for a common term, you'll know exactly what Cuban means when he writes about the risk of good signals being swallowed by the noise. There are a number of variations on splogs, but most merely contain pages of links, and many contain nonsense entries or fragments of commentary clearly cribbed from other sources.

If you've ever had a blog yourself, you also know all about blog spam or comment spam, which consists of spam entries in the comments section of a blog, typically deposited there by an automated bot like so many electronic roach droppings.

In what some have deemed a plug for his own search engine Icerocket.com, Cuban noted in his post that Icerocket blocked thousands of splogs per day, but that since setting up a blog is free, virtually effortless and can be automated, this Whack-a-Mole defense (our analogy, not Cuban's) must be supplemented by other solutions.

Cuban was talking about technological defenses, but are there any legal ones? With blog spam, there are a number of steps that can be taken, as detailed here. But blog spam consists, essentially, of intruding on a third party's computer system, which in a very general sense makes it easier for that third party to try to exclude the unwanted visitor -- web site agreements are the very first line of defense.

But splogs are something different. Rather than representing an attack on a particular site in order to drive traffic to a spam site and enhance search engine rankings for the linked site, a splog constitutes an attack on all legitimate sites providing content on the topics the splogger has targeted. But it's really not an "attack" at all in any legal sense of the word - the splog sits quietly in a corner, minding its own business, and lets traffic come to it because the search engines have indexed it under the topic of choice.

A splog is set up and owned by the splogger, and unless he or she (or perhaps more appropriately for automated splogs, "it") includes material from another site that constitutes a copyright or trademark infringement or otherwise violates the law, there is no legal recourse for a legitimate blogger who believes that the splog is siphoning traffic from the legitimate site.

So, can anything be done from a legal perspective? First, of course, blog hosting companies may have the right to take the splog site down under the spam/abuse section of their user agreement, depending on how those agreements are worded (or should be worded?). Google's blogger.com, the subject of much of Mark Cuban's ire, has the following language in its terms of service:

"The Service makes use of the Internet to send and receive certain messages; therefore, Member's conduct is subject to Internet regulations, policies and procedures. Member will not use the Service for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process."

This would appear to allow Google to take down a splog site, if "spamming" is read broadly. But all of this assumes that any particular host company is motivated to take any action.

If the site is using another party's trademark to drive traffic to the splog, arguably this would be a trademark infringement (especially if the trademark is used in the site's metatags). Type in the name of your favorite automobile brand into a blog search engine, for example, you will get a number of splogs that include content that is primarily garbage, but with the name of the brand sprinkled throughout. A good argument can be made that this is trademark infringement, since the only obvious purpose of the trademark use is to divert traffic. But even if you can get around defenses such as nominal use, the only party with standing to bring a claim is the trademark holder - i.e., the car manufacturer - and if you run a blog that provides reviews of Toyota cars, for instance, you will not have any basis for taking action.

And of course, anyone who might have standing runs into the problem that Mark Cuban identified - how to go after the hordes of splogs out there other than on a one-off basis? For any individual or company, the time and effort of identifying actual owners of any of these fake sites almost ensures that this is a losing battle. However, one way of fighting splog infestations might be to harness the power of the multitudes -- that is, tap into the blog readership base itself. Some falks are already trying this as form of communal policing.

But how about taking it a step farther with a take-down system along the lines of that employed under the Digital Millenium Copyright Act, but implemented by the major blog hosts. The system would not be triggered by infringing content, but rather by the absences of content. Under a take-down system, if I identify a splog I would send an email to the host (even better --and probably unrealistic -- the host could require a "Click Here if You Think This is a Splog" button on every site, or something similar to the "Flag as Objectionable" icon on the Blogger NavBar could perhaps be utilized) and the host would automatically send a notice to the splog owner requiring a response explaining that the site is not a splog.

In a perfect world, this notification/response system would be designed in such a way that the responses themselves could not easily be automated. If no response is received, the splog would be taken down automatically. If a response is received, the host company would have to actually take a look at the site and make a determination whether or not the site is a splog.

This is, of course, where it would get tricky, and where the hosts may balk - reviewing individual sites is time-consuming and expensive. Also, how does a host determine what constitutes a blog - no original content, less than 10% original content? Whatever definition is decided upon, that definition would then have to become part of the host's terms of use, but the line-drawing would still be difficult. There are probably automated linguistic tests that could be developed to analyze a site's content to at least take a first cut at weeding out the most obvious splog sites.

One thing to remember is that under such a regime the review would theoretically only happen once for each site - even if out of mischief or spite someone causes a take-down notice to be sent to a legitimate blogger, once the host reviews the site and it is deemed legit - probably a very simple matter for most legitimate blogs - it would not need to be reviewed again in most cases. The "Click Here if You Think This is a Splog" could then be deleted from the site.

We ourselves can poke lots of holes in this system, especially as described in such broad strokes as above -- our proposal is meant to foster a discussion about constructive solutions to a growing problem. The point is that although spammers are clever and will continue to try to create splogs that mimic legitimate blogs, it is not in a spammmer's interest to devote serious time and effort to creating content, so it should always be easy for a human reviewer to pick out the real thing from the fake. The key is to add some structure to the communal policing that already occurs. Whether it is driven by a technological solution or a legal one, some level of human review may ultimately be necessary to combat splogs, but to be the most successful it may require the vigilance of blog readers everywhere.

Posted by Lance Koonce