In the post-New York Times v. Tasini world, publishers can no longer afford to rush and jump on the latest delivery mechanisms like giddy preschoolers to carnival rides. Sure, technologies exist to make it easy for publishers to deploy RSS, but can we also harness a world wide web chock-full of content that has—by virtue of that RSS button—become tantalizingly easy to tap?
Michelle provides a nice summary of views, including the following:
- Lawrence Lessig – ‘An RSS feed is a publication meant to be aggregated, subscribed to by individuals for personal use and by public aggregators, too.’
- Fred Meeker of Banner & Witcoff – ‘Since most news feeds are meant to be used and received by users, there is an argument that a copyright owner who creates an RSS feed has granted a non-exclusive license, either expressly or by implied conduct, that the source be freely distributed and/or redistributed. Consent to use the news feed may be manifest via either silence or lack of objection.’
- Peter Strand of Holland & Knight. – ‘The content of RSS feeds, including the headline and the article or story, is protected by copyright, and retransmission, distribution, or other uses without permission is copyright infringement. Headlines, like all short phrases, receive limited protection and can only be protected if the headline is sufficiently original and not a mere statement of facts.’
- Scott Abel of The Content Wrangler – ‘As a publication that charges for content, your main issue may be that you cannot resell content that belongs to someone else. I’d imagine it is perfectly legal to make content available on a free section of your website. It would act as a draw to others and could complement your original content.’
Jury may be out on this. But using someone’s content without permission for your gain, whether you’re charging for access to it, selling ads on the content you’re displaying, or for any other reason is wrong. And removing the content after the publisher asks is not right either. Seek permission. If denied, don’t use the RSS feeds.
Public aggregators such as NewsGator, Technorati, and IceRocket are akin to search engines. Their republishing of feeds is fine. They’re akin to Google indexing web pages.
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