Thursday, October 27, 2005

Copyrights, Blogs, News, Content Aggregation and RSS Feeds

RSS and Atom Feeds: Really Simple Syndication

RSS feeds are revolutionizing the way that information is being processed on the Internet. Even Google just started their own Google Reader for RSS feeds this month.

What is the legal status of RSS feeds under Internet Law and IP Law ("intellectual property" law), especially in view of the fact that many blogs and news media make their content available through their RSS feeds? We include ATOM feeds here under the general rubric of RSS feeds, i.e. as "Really Simple Syndication". Indeed, the IEEE sees Atom as the "standard in syndication", even though the term RSS is everywhere used.

Implied Licenses Granted by Placing Material Online?

Eric Goldman at the Technology & Marketing Law Blog discusses whether making RSS feeds publicly available thereby grants an implied license of use to RSS feed users, and if so, how such an implied license could be negated, if necessary. But see Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine by Tom W. Bell, 76 N. Carolina L. Rev. 557 (1998).

As Goldman writes:
"[I]f a blogger makes a feed of his/her blog available, what can others [legally] do with that content?"

Take a look at his analysis and see also Scobleizer for a panoply of opinions on this topic. The non-exclusive implied license granted by placing materials online is also discussed at When One Thing Leads to Another - Linking and Metatag Liability, by Barbara S. Murphy and Lynn S. Walker, Georgia State University College of Law, Law and the Internet, Professor Wiseman, Summer 2003 (see II.1 in that article).

The Legality of Data Harvesting (not to be confused with E-Discovery Harvesting)

One issue that faces RSS feeds is the practice of "data harvesting" for purposes of creating websites which then sell ads to make money. Martin Schwimmer at the Trademark Blog refers to a ClickZ article by Pamela Parker which refers to other instances of data harvesting such as the ad aggregator Oodle.com or the job aggregator Indeed.com.

There are data harvesting cases which have been decided and which clearly support the principle that data harvesting is legal under some circumstances. See the article Golf Scores v. Yacht Sales: Copyright Law and Data Extraction by Javad Heydary and By No Other (related USA Today, Nautical Solutions Marketing v. Boats.com). At the same time, there are also cases which clearly have found other kinds of data harvesting to be illegal, albeit not necessarily on copyright infringement grounds, e.g. Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), aff’ d, 356 F.3d 393 (2d Cir. 2004). See Phillips Nizer for an abstract of that case and the Boston University School of Law, Journal of Science and Technology Law, Legal Update by James J. Tracy for a contract view of browsewrap agreements.

Terms of Use for RSS Feeds

The terms of use for RSS feeds published by mainstream publishers such as the New York Times clearly claim a full copyright to content syndicated by RSS feeds. These terms of use strictly exclude commercial use such as commercial data harvesting.

The New York Times offers over 30 free RSS feeds, albeit under the following terms and conditions:

"We encourage the use of NYTimes.com RSS feeds for personal use in a news reader or as part of a non-commercial Web site or blog. We require proper format and attribution whenever New York Times content is posted on your Web site, and we reserve the right to require that you cease distributing NYTimes.com content. Please read the Terms and Conditions for complete instructions.

NYTimes.com also offers a free headline feed for displaying headlines on personal or professional Web sites, for non-commercial purposes. For more information and instructions, see Add New York Times Headlines to Your Site."


Use of Headlines Written by Other Sources


With regard to the use of headlines, the Japanese Intellectual Property High Court recently decided that it was copyright infringement for a commercial online enterprise - without asking for permission - to use newspaper headlines on its website from Japan's largest daily newspaper. We do not doubt that courts in other countries would make similar holdings.

Fair Use of RSS Feeds and Attribution

The free use which the New York Times offers is essentially an expanded "fair use", i.e. use of news on a "non-commercial Web site or blog". This is essentially similar to the "Creative Commons" license found at the bottom of the LawPundit blog pages, where use of LawPundit material - with proper attribution - is permitted for non-commercial purposes. The NY Times also requires proper attribution of their materials, although attribution has an unclear status in copyright law as far as "fair use" of copyrighted materials is concerned.

As written by Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, 1995 J. ONLINE L. , art. 2, par. 20:

"Both of these cases [Waldman Publishing Corp. v. Landoll Inc. and Robinson v. Random House Inc)] suggest that a right of attribution does in fact exist in United States law, at least in circumstances where the failure to attribute has a commercial effect. If you copy material without identifying it as copied, that fact may hurt you in a copyright infringement suit. Even if you cannot be sued for copyright infringement, your failure to attribute copied material may be actionable under the Lanham Act if it confuses consumers as to the source of the copied material. Taken together, these cases suggest that the worst cases of nonattribution will be taken care of by the existing law."

Attribution not required for Works in the Public Domain

The rule is different for works in the public domain, where attribution is not required. This was decided in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). See Stacey L. Garrett, No need to Search the Nile: The Supreme Court Clarifies the Use of Public Domain Works in Dastar v. Twentieth Century Fox, Journal of Law, Technology & Policy (Univ. of Illinois), Fall, 2003.

Where is the Line between Commercial and Non-Commercial Use?

The line between a non-commercial or commercial website or blog is not clear. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) , the US Supreme Court found:

"The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use. "[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451 . In arguing that the purpose of news reporting is not purely commercial, The Nation misses the point entirely. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. See Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp., at 1144; 3 Nimmer 13.05[A]1., at 13-71, n. 25.3."

Many websites and blogs place advertising on their online pages to help pay for costs, e.g. of webspace, etc. and are not really "commercial" undertakings as such, nor are they generally viewed to be "commercial" in nature. Where will the courts draw the line?

What happens, for example, when an otherwise "non-commercial" website or blog is so successful that its commercial ads begin to reap actual profits for the website or for the blogger? Once that happens, such websites or blogs surely become "commercial" in nature, which makes it much more difficult, but not impossible, to invoke the "fair use" exception to the copyright laws.

But even if no profit is being made, could a site harvesting RSS feeds use RSS feed material to promulgate e.g. pornographic advertising on a website in the hope of gain? The answer here must surely be "no", and evidence of purpose, rather than profit, ought to be sufficient.

Clear Terms of Use are Important

In any case, put into different words, RSS feeds "belong" as such to the originator of the RSS feed. Fair use can be made of these feeds, but not commercial use. The solution for the "grey cases" may be in part that RSS feed originators clearly declare the permissible uses of their materials on the website pages. The New York Times terms of use listed here provide a good model to start. Of course, no copyright holder can prohibit lawful fair use, even if such fair use were to be expressly denied by the copyright owner. There will be friction in this grey area.

What about RSS Feed Catalogues?

The most interesting legal question in this connection is whether the use of RSS feeds for legitimate "cataloging purposes" by a commercial enterprise, such as Technorati or Google BlogSearch, is fair use. We think it is in principle, because we find it to be a permissible "transformative use" as in the Arriba case. However, we do not know what the courts will decide in this regard.

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