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Fair use or copyright violation?

Top Ten Sources, described by TechCrunch as a human edited blog aggregator, just raised $3.5 million in funding.

I wonder about business models that appear to be merely a display of RSS feed excerpts broken down by category surrounded by advertising. In the case of Top Ten Sources, even charging to access to the feeds at some point, as indicated in their FAQ’s. Is it permissible to use RSS feeds for commercial purposes without seeking permission of the blog publisher and/or paying the blog publishers a portion the ad revenue? I think it’s an open question.

Anything written, including copy distributed by RSS feeds, is copyright protected. ‘Fair Use’ allows for the use of portions of copyrighted materials for purposes of commentary and criticism. A model like Top Ten Sources looks to go beyond fair use.

Better minds than me may have the answers. Perhaps Stephen Nipper, Martin Schwimmer, or Denise Howell, all excellent IP lawyers, would chime in.

I’d be interested in Ashton Peery’s, President of Top Ten Sources, take on using other people’s feeds for the company’s financial gain until the blog publisher requests to have their feeds removed.

  • http://techcrunch.com Marshall Kirkpatrick

    This was discussed at length when the company launched, search around the blogosphere and you’ll find links to several perspectives. It basically comes down to partial feeds being used and not full feeds. I think the human selection of sources is a great value add, myself.

  • http://blog.bretttrout.com/ Brett Trout

    I do not know if I qualify as an “excellent” IP attorney, but IP attorney is indeed what is says on the business card they gave me when I joined the witness protection program. Like any fair use http://blog.bretttrout.com/2006/06/what-constitutes-fair-use.html analysis, the question is one of degree.
    Since Top Ten Sources is a “for profit” venture, the analysis is going to lean more in favor of the copyright owner. If Top Ten Sources uses the material verbatim, and causes a revenue drop for the copyright owners’ websites, fair use is probably not going to protect Top Ten Sources in a copyright infringement suit.
    Keep a close eye out for similar suits moving through the courts. As courts come up to speed on online copyright issues, patterns will begin to emerge. My belief is that regardless of whether you are an RSS aggregator or a video clip aggregator, if your actions reduce the number of clicks to the copyright owner’s website, or otherwise reduce the copyright owner’s revenue, you will likely find yourself on the wrong end of a federal copyright lawsuit.

  • http://toptensources.com Joel Brown

    An informal response from a TopTen staffer: I wish you all would take a look at the site before you judge. We’re using only a brief sample of the material and linking back to the source. If anything we hope to *increase* their traffic by solving the problem of finding them among oceans of search results.

  • http://www.bizop.ca michael webster

    Copyright law is about protecting property rights. Generally, no one has the right to improve the value of my property without my consent. If it is my property, I get to say when, where and how to improvements. You cannot simply take my property, improve it, and return it to me without violating my property rights.
    I agree with Kevin’s observation that many of these RSS feeds/business models are courting disaster. Partial feeds are unlikely to be a defence, since no real fair comment is undertaken on the site.

  • http://toptensources.com Joel Brown

    Well, I guess that depends on your definition of fair comment, but every link includes not just a line from the soure but also one written by the editor who picked it, commenting on content, form or both.