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Law on using others’ RSS feeds

Michelle Manafy has an excellent article at EContent regarding the law on using others RSS feeds.

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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  • http://www.plagiarismtoday.com Jonathan Bailey

    it is going to be interesting to see how this one shakes down. There is a definite sense that republishing a feed, especially scraping the whole content of it, without permission is not allowed, but there’s also a sense that an RSS feed comes with an implied license that goes beyond the implied license that comes with posting a Web page.
    The courts are really going to have to step in on this one and set some kind of boundaries. I tell my readers to just clearly license their RSS feed, eliminating the questions, but the vast majority are published with no clear license or guidance.
    It’s sad that courts have to resolve these issues for us, but it looks to be the case.

  • http://www.binarylaw.co.uk Nick Holmes

    Google, Technorati etc publishing feed headlines/exerpts/content is fine, but not the rest of us? Explain.
    To my mind the distinction between headlines/exerpts/content is the important thing, not who publishes them or even if they have ads attached.

  • http://kevin.lexblog.com Kevin OKeefe

    >>Google, Technorati etc publishing feed headlines/exerpts/content is fine, but not the rest of us?

  • http://www.binarylaw.co.uk Nick Holmes

    I don’t disagree, but my point is we can’t have one law for Google etc and another for the rest of us. Our common ground is that the context is important. I don’t see much of a problem displaying linked headlines in any context, since the effect is to drive traffic to the feed publisher. Whether displaying content is good or bad depends on the context – definitely permission should be sought. And yes, stealing content just for the Google juice is the pits.

  • http://kevin.lexblog.com Kevin OKeefe

    Why not have one standard for Google et al and another for those trying to rip off content providers? I give content to Google so it can be indexed and be easy to find for the masses.
    I can make a clear distinction between Technorati and some joker who puts up my RSS feeds and my categories in something akin to my blog as he is starting a lawyer directory and needs content to suck the search engines in or to sell google ads until ge figures out how to make a dime.
    There are gray areas in all areas of the law. This may be one that will need to be decided on a case by case basis. My experience as a trial lawyer tells me that in most cases, wrongdoers know they are wrong. If they do not conform, courts will then make them do so.

  • TC

    I’m no lawyer, but Google is no different than anyone else. They DO sell advertising on their site, and make money by other’s visiting their RSS section and feeds which are created using “other individual’s” content. For that matter, they make money off of many sites that they crawl and list whether the site wants to be listed or not. My website shows up on google… with some internal site information displayed – and I never gave them permission to list it.
    Does that give me the right to sue google since they’re possibly making money off people searching content of which my site is a part of…? My opinion is that I don’t actually care. That’s the beauty of the web. It’s a place to SHARE information. If you don’t want the information shared… don’t make it available, don’t syndicate it. And if you want it syndicated in a controlled environment, then do so via username’s and passwords.
    The real purpose of RSS is to syndicate content and drive user’s to your site. The only time someone should legally pursue someone else is if they are in turn taking that content and treating it as if it is originally theirs. Then it’s a copyright issue.