August 27th, 2006
License To Nil
Does syndicating material (i.e., via RSS or Atom) mean anything, in and of itself, from a legal standpoint? Does it alter existing copyright law, which in the U.S. says that all rights are reserved by default, without the publisher taking a single further step?
Beyond a doubt this ranks among the top 5 unanswered legal questions of the Live Web. (I’m going to have to decide what the other 4 are and do the requisite post. If you beat me to it, let me know and I’ll link.)
Most recently, the issue has surfaced in a debate between Michael Greenly and Robert Scoble, the crux of which is, as Robert puts it, "[is] putting a full-text RSS feed out there…like giving everyone a license to copy my content and use it however they want[?]"
There has been a lot, and I mean a lot, of informed discussion around the "what are the potential copyright ramifications of publishing a feed?" question. See the pile of related links at the end of this post. But there’s an interesting twist to the Greenly-Scoble exchange. And a similar twist in Bob Wyman’s comment to my Riparian Rights post. It’s this: when I’ve seen this subject come up before, it has been in the context of something done with the feed itself — e.g., the feed has been aggretated, then associated with ads. Now, the implied license argument is going a step further. The license urged is being divorced from the feed and activities directly related to the feed, and theoretically extended to activities like scraping and other copying that can be or is technically brought about irrespective of the feed. This argument interprets syndication broadly to encompass not just the publishing and processing of a feed, but a myriad of reuses of the feed-distributed material.
I don’t pretend to know what is going to happen the first time these issues come before a court. Or, thereafter, what will emerge as the approach other courts adopt as well-reasoned and persuasive. (If I were that prescient, I’d be in another line of work altogether.) What I do know is this conundrum is up for grabs, and — I don’t want to alarm anyone, but — its outcome will turn on the quality of advocacy and judicial analytic skills brought to bear when it ultimately begins to be litigated. When that happens, even though it might ultimately carry the day the "implied license" argument will have an uphill battle for the reason Robert summarizes as follows:
Ahh, so if it’s easy to copy it’s OK to steal?
American copyright law says "not true."
For those interested in more background, discussion, and chewing over of these issues, here’s an incomplete but hopefully informative reading (and listening) list:
- Marty Schwimmer, Why I Have Asked Bloglines To Remove My Site From Its ‘Service’
- Marty Schwimmer, Clarifying Some Points As To Why I Asked Bloglines To Remove My Feed
- Marty Schwimmer, If He Doesn’t Like Bloglines, Why Does He Make a RSS Feed Available?
- Marty Schwimmer, Dear Jeeves: Please Offer A Non-Commercial Opt-Out For Bloggers
- John Palfrey, History repeating itself?
- John Palfrey, Yet another reason for (cc) licenses in RSS feeds
- John Palfrey, The RSS Copyright Question, Cont’d
- John Palfrey, RSS and Copyright, circa 2006; Techmeme re same
- John Palfrey, Idea: Creative Source Licenses
- Nathan Yergler, Licenses for Blogs
- John Palfrey, Following Up on the RSS/Copyright Debate
- Ethan Zuckerman, Can Creative Commons and Commercial Aggregators learn to play nice?
- My Sound Policy interview with Bob Wyman
- Shelley Powers, That old copyright song
- Comments to Shelley’s post from: me; Shelley; Kevin Heller; me; John Palfrey; Fred von Lohmann
- [Updated September 3, 2006 @ 9:26 am:] Doc Searls, Sploggers beware
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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| 08/28/06
