With the advent of the RSS (Really Simple Syndication) feeds, copyright law got a lot trickier. Labeled “really simple stealing” by AOL’s Jason Calacanis, there is still no clear-cut legal precedent about implied consent to repurpose syndicated content, but the legal system that protects search engines may also green-light spammy content aggregators.
A content provider distributes his or her content through the use of an RSS feed. This feed is open to any who would subscribe. The first question is: Is there an implied consent to repurpose that material by republishing it (with proper credit) on a blog or Website? The act of syndicating (distributing) content may imply that permission.
The second question is: How are splogs (spam blogs) that are set up as aggregators of content to attract keyword-driven traffic, that publish only the headline and snippet of text, that link out to the original source, and that make money from AdSense different from Google and other search engines? Doesn’t Google do, essentially, the same thing?
The short answer is that the legal system hasn’t really decided for certain.
Fred von Lohmann, Senior Intellectual Property Attorney for the Electronic Frontier Foundation told Murdok, “Frankly, until there is some case law on this or related issues, we simply can’t be sure of the answers to these questions. “As with so many things on the Internet, copyright law has yet to catch up with the realities of RSS syndication.”
But copyright holders have caught up with Google, whose News and Book Search offerings have gotten the company sued in several countries, including the U.S., France, and Belgium. U.S. courts so far have held up Google’s right to index copyrighted content.
Google says its right to offer headlines, titles, and snippets of content is supported by a standing policy to allow content owners to opt out of indexing.
From the Google Blog:
Even if use of their work would be perfectly legal, we respect the wishes of content owners. For example, if a content owner asks us to remove his or her content from our web search results, we do.
If a newspaper does not want to be part of Google News, we take the paper’s stories out. And if publishers would prefer not to have their books included in Google Book Search, we honor their request. It’s simple: we always allow content owners to opt out – quickly and easily.
And Google does have a payment agreement with the Associated Press for the right to repurpose its content.
Aggregator splogs, however, do not offer an opt-out provision, effectively ignoring any objections from the content owner. Even this, technically, may be legal, if implied consent is present.
Eric Goldman, who teaches Cyberlaw and Intellectual Property at Santa Clara University School of Law and serves on the editorial boards of Business Law Today and the Journal of the Copyright Society of the U.S.A., confirms that it’s a tricky question.
“In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed,” wrote Goldman on his Technology and Marketing Law Blog. “However, because it’s implied, I’m just not sure of the license terms. So, in theory, it could be an implied license to permit aggregators to do whatever they want.”
But that doesn’t mean content owners are powerless to protect syndicated content. Goldman suggests that a simple disclosure near a subscription/syndication link, stating how the content may be used, might be sufficient to destroy an implied license.
Another option, Goldman says, is if in the future the Copyright Office made use of RSS by accepting feeds for automatic registration – publish a blog post, it goes straight to the office to be registered.
A registered copyright makes bloggers eligible for statutory damages and attorney’s fees while supporting a class action option if bloggers go after aggregators and scrapers collectively.
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