View Thread > Internet & Society > Editing Blogs > IANAL
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?
Clearly I am not a lawyer, and don't know the intricacies of copyright. However, instinctually I would think that Blogger #2 has created a derivative work of Blogger #1's posts. Aggregation is one thing, but when someone deliberately collects that feed in a manner for which feeds were not intended, that's not what I would call fair use. Again, not a lawyer, and I have no idea what recourse there is, but as a blog writer, I'd say it's not in the spirit of RSS and therefore violates my generosity as someone making my writing available for aggregation.
Hi, IANAL/Wendy: Empowerment of the people has taken on new meaning in recent years, by empowering the individual to compete with the world's largest corporations. Using the RSS protocol, Blogger #1 can take advantage of the Internet, making his metadata available. Prior to the Digital Age, Blogger #1 was restricted to syndicating his posts through publishing media, requiring specialized and expensive services. Copyright laws helped to encourage and promote investment in such services. Does Blogger #1 help himself compete with "mainstream" publishing houses by applying traditional, present-day copyright law to the Internet, raising the entry cost for authors and creators?
I think you made a very good point about others being sensitive to the spirit of the RSS protocol. Mark Pilgrim, who occasionally writes for O'Reilly Associates, describes, "RSS is a format for syndicating news and the content of news-like sites, including major news sites like Wired, news-oriented community sites like Slashdot, and personal web logs." He goes on, "Once information about each item is in RSS format, an RSS-aware program can check the feed for changes and react to the changes in an appropriate way."
As you may know, common to many RSS feeds, one finds,title, link to source, description (or content), date, and author, and more. If, in addition, Blogger #1 includes copyright notice within each item, it is difficult to imagine anyone not being aware of who the author is, or that the content is copyrighted.
This raises the question, then, as to whether Blogger #1 intends to control which web sites can display his feeds. Much in the same way the RIAA and MPAA want to decide who may listen to, or view, entertainment content on the Internet, Blogger #1 appears to want to extend similar controls on fellow content providers on the Internet. Or, not.