Editing Blogs Response

Question

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?

Editing Blogs Response From: tom poe

Blogger #1, as I understand the question, objects to having his posts "mirrored" by Blogger #2. If that is the case, Blogger #1 then asks Blogger #2 to stop. I suspect that Blogger #2, out of professional courtesy would then stop. Blogger #2 might want to contact Blogger #1, after stopping, and discuss how best to proceed with what Blogger #2 would like to do to help Blogger #1 expand beyond his website for exposure of his postings, and see if Blogger #2 can be of help.

Why would Blogger #2 not stop when asked? Assuming Blogger #2 is determined to continue, Blogger #1 has the option of bringing a lawsuit against Blogger #2 for violating copyright or creating a derivative work. However, I find no reason for Blogger #2 to continue once the objection has been raised by Blogger #1. There is also the option for Blogger #1 to post an interesting little disclaimer on each of his posts that would tend to demean the credibility of posts appearing on Blogger #2's site, thereby escalating the problem Blogger #1 created by insisting on applying full copyright to the posts being distributed freely over the Internet, a medium not designed for distributing protected material.