View Thread > Internet & Society > Editing Blogs > What is "a copy"?
This question was stolen (with permission!) from the blog of John Palfrey, Executive Director of the Berkman Center.
Blogger #1 posts frequently during the course of most days to his publicly accessible web site. Blogger #1 syndicates his work via an RSS feed to anyone who wishes to pick up that feed. Blogger #1 retains full copyright in his written work. Though it's not strictly required that he do so under copyright law, Blogger #1 has made clear in various places, including the footer of each page of his blog and in the text of his RSS feeds, that he retains full (c).
Blogger #2 receives the RSS feed from Blogger #1. Blogger #2, in fact, configures a computer program to receive this RSS feed quite frequently from Blogger #1's site over the course of several days. Blogger #2 reposts the relevant content from Blogger #1's RSS feeds (i.e., not including XML tags in the reposting) verbatim. In fact, Blogger #2 reposts every version of every blog posting to the republication site, apparently to highlight edits made to Blogger #1's postings over the course of each day. Blogger #2 uses color to highlight the edits that Blogger #1 has made.
Blogger #1 objects to Blogger #2's verbatim republication of Blogger #1's feeds.
What recourse does Blogger #1 have? Has Blogger #2 violated the copyright of Blogger #1 by copying the text verbatim? Has Blogger #2 created a derivative work of Blogger #1's posts by highlighting the changes? Can Blogger #2 rely upon a fair use exception? Consider carefully the impact of the *entirety* of the copying in the 4-factor test (http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test). Or, perhaps, can he rely on an implied license to republish in the manner that he has?
This is an interesting scenario at the heart of which is the ongoing difficulty with defining "copy" in the digital world. As various people have previously argued (in particular Litman in "Digital Copyright", Prometheus Books 2001) the fact that a "copy" is the "unit of measurement" in traditional copyright law is not because it is fundamental to what copyright law tries to achieve, but because in the analogue world it was a good proxy for it.
Copyright law has struggled to define a "copy" in the digital world for a number of years, and case law has thrown up various interpretations, many of them contradictory: does the version of a computer program loaded into RAM to run it constitute a copy? What about copying a CD to a hard drive for the purpose of running the program faster? What about an archive copy of a CD or other data storage medium?
In the current state of copyright law, my opinion is that most judges would view Blogger #2 as having copied a number of Blooger #1's copyrighted works: each different "version" edit of the blog. The RSS feed is not sufficient to grant even an implied license to re-publish, and even if there were an implied license Blogger #1 can prevent further copying by explicitly rescinding any implied license in the future.
The secon question of whether Blogger #2 has created a derivative work is more tricky. I suspect most (but not all) judges would rule that a purely mechanical comparison of an original text and a derivative work is not per se a derivative work. Given a ruling that he does not have permission to republish in the first place, though, this point would likely become moot, unless damages were sought.