Burningbird

This is a huge part of the Philly Future model. We feature blogrolls of those we aggregate extensively, contextually based upon where you are on PF. Right now those blogrolls are available either on site, or as OPML to import into your favorite aggregator.

Down the road, I hope we can provide Technorati-style claim your feed functionality. But for now, most folks have asked that we aggregate them, others we alert that we find their blog one worthy of highlighting on the site. Those that have asked that we remove them (only one, not for copyright issues), we have obeyed their wishes.

I think there is a difference between what we do and a splogs - we never alter the original feed - for example, stripping where that content came from - which is what most splogs do.

We have yet to determine if we are a for-profit or non-profit. How this discussion plays out maybe the determining factor.

Why doesn't top 10 sources republish full articles from other websites? Like say… um, the nytimes.com ? It's "available" on the internet for consumption. Why does the fact that the distribution model is RSS vs HTML suddenly change copyright?

Puzzled and confused,
Darryl

To the techs out there: am I right, or am I wrong? Isn’t a personal aggregator, whether web-based or desktop-based, nothing more than a variation on a browser, in that it rendered web-based material for an individual’s personal consumption?

I am inclined to agree. I'm no copyright law expert, but rolling the issue around in my head a few times I'm not seeing how distributing material through a feed (such as RSS) magically means that the material is not subject to copyright law, any more than driving on a side street instead of a highway makes you immune to local traffic laws.

I defer to the real experts for the definitive yes/no answer.

We have yet to determine if we are a for-profit or non-profit. How this discussion plays out maybe the determining factor.

Karl, to that point, I refer you to the case of the Harry Fox agency vs. Lyrics.ch. I personally liked lyrics.ch, and they didn't explicitly reprint song lyrics for any sort of financial gain, such as selling the web pages individually or charging some sort of membership fee. However, they lost their case based on having banner ads. The court ruled that the banner ads were a form of profiteering, and therefore nullified any argument of not acting as a reseller of the material.

Again, I am no expert on this, but I recommend looking into whether AdSense or equivalent on your site counts as "reselling" the aggregated content.

(This could be why BlogLines hasn't forcibly inserted any ads yet.)

My first question in these matters is always: are they identifying their crawler with a unique client ID and complying with robots.txt rules? If so, how is their republishing different from Google's cache? If not, why not?

This could be why BlogLines hasn’t forcibly inserted any ads yet.

I would *guess* that this is a huge reason they do not.

You're so right. So is Darryl.

This is a good reason not to call RSS "syndication."

Shelley, you are correct; copyright is copyright.

For fun, head over to IT Conversations and listen to Bob Wyman chat on the subject. Good stuff.

Ethan, thanks for the feedback. We have a few ads on the site now (Blogads, not AdSense), to help pay for hosting, which is looking more and more expensive for what we do (CPU and database utilization is nuts). I've avoided putting up AdSense specifically because I feel unsettled over this very question.

This is a good reason not to call RSS “syndication.”

"Rich Site Summary"

Or switch to Atom.

how is their republishing different from Google’s cache? If not, why not?

Has anyone every noticed adsense adds on google cache pages? Ever wondered why not?

I'm not a lawyer either, but here goes. There are actually three questions (Yes, Shelley, I know you only asked one — it's the middle one).

1. Is Top Ten actually republishing content, or merely linking to it? Winer claims it's just a link. Since I don't use RSS, I can't figure out which it is.

2. If Top Ten is republishing content, does that infringe on the content originator's copyright? Yes. Absolutely. Without a doubt. Shelley, you're right.

3. If Top Ten has infringed on a content originator's copyright, what, if anything, can be done about it? Not much. Copyright enforcement is a civil matter. You have to help yourself. You have to sue the infringer. Which means you have to hire a lawyer and pay him/her through the suit. That will cost on the order of thousands. What return can you expect? My understanding is you can't get statutory damages unless you've registered the content. So damages are likely to be assessed on the basis of economic loss to you and economic gain to the infringer. For a blog feed? maybe hundreds (if you're lucky).

Intellectual property law, in its majesty, forbids rich and poor alike from infringing copyright.

Can we define "republishing content"? We do not publish a combined RSS feed that republishes content aggregated for example.

What I'm devining from this is, even though our users like us and want us to be doing what we're doing (we send users *their* way) … we're in copyright violation. Is that the case?

No, ‘gentlemen of the court’ niceties; no A-list deference; no but it’s Harvard obfuscation; no Web 2.0 bullshit.

You're kidding, correct? :-( Harvard is right because it's Harvard. The A-list is right because they are the A-list. :-(

What I’m devining from this is, even though our users like us and want us to be doing what we’re doing (we send users *their* way) … we’re in copyright violation. Is that the case?

I'm not a lawyer, but I'm pretty sure copyright law doesn't consider whether your users like you when deciding whether you are illegally copying content.

My feed is republished as part of Planet RDF and Planet Identity. Since I don't publish a full feed, they wouldn't be in copyright violation by republishing my feed.

Are they with other feeds? Technically, yes. If we assume that copyright has to do with the work, not the means the work is delivered, than republication of the work is copyright violation.

Now, we may not care. I am pleased my work is republished with Planet RDF and Planet Identity. I have no problems because a) it's an aggregation based on community and interest and b) neither site is profiting from my work.

But I have had a site tell me that since I published my material in a feed, they can do what they want with it — including setting up their own weblog, with comments. They think since they attribute the material to me, this is enough. It isn't! Luckily I had my own technical means of dealing with that situation.

Karl, I imagine that your PhillyFuture is much like the Planet aggregators and either people asked to be included, or if you did include, you would remove people who asked to be removed. Top Ten Sources has also said they'll remove people who ask.

However, this is opt-out, and frankly, if we don't like it with telephone solicitation, why do we think its okay in the weblogging world? Any aggregation based on community should be opt-in. In my humble opinion.

What got me specifically about this instance, though, is here is a person from a law school that's fairly well known, talking about 'implicit' permission (based on the technology) and how the technology seemingly changes intepretation of the law.

Stop stop stop stop stop! There is no magic weblogging pixie dust that takes away the big bad copyright demon. The laws of our land are not defined as in "…applies to everyone, except webloggers and RSS users, of course."

James, thanks for the Bob Wyman link. I noticed Denise did the interview. I would love to hear her take on this.

YES DENISE! Am hoping she sees this and comments too.

I just posted something on my blog. I would like to think it's not necessary, but it might be. So it's there for the record.

Shelley this is a great post. As a Top Ten Source, I can say that the model for using sources is 'select and tell' which is better than just grabbing and running. I was pleased to be included–my issue would be if they started running ads with my content and I wasn't sharing in the revenue. THAT'S the difference between a splog and TTS in terms of RSSing, as far as I can tell.

Shelley, early on it was an 'opt out' thing, however, since gaining momentum, our policy is to 'select and tell' (I like that wording - thanks :)). At this point, most folks ask to join in.

As for ads - well we will probably break the mold and go non-profit. The purpose of the site is to help connect our regional web.

And Scott, by 'users' - I ment those who are being aggregated by us. Not visitors to the site.

Shelley: "Isn’t a personal aggregator, whether web-based or desktop-based, nothing more than a variation on a browser…?"

Agreed.

Darryl: "Why does the fact that the distribution model is RSS vs HTML suddenly change copyright?"

Publishing via RSS implies a license to aggregate, just as publishing via HTML implies a license to store content in a browser cache, or working over HTTP implies a license to proxy and redistribute content within an organization.

Basically, if you want to be gung-ho about it, the entire web is a copyright violation. If you want to be practical, though, you recognize that publishers need to take some responsibility for their publishing, just as consumers need to take care in how they consume.

Ethan: "(This could be why BlogLines hasn’t forcibly inserted any ads yet.)"

I have a theory about that. I suspect they could get by with it, but only if they locked the search bots out of their archives. At that point, they would be no different than a desktop aggregator… but I suspect they're more interested in building traffic right now.

I am not a lawyer, but my very limited knowledge of copyright law is that the whole "commercial for-profit enterprise" bit is irrelevant. If it's illegal, it's illegal, whether or not someone's making money off it.

Of course, you can specifically say that usage of your feed is legal for private/non-profit use, but that's a whole different thing.

As to the rightness or wrongness of the ethics, I'll stay out of that particular discussion, as I have a site that's been doing just this since 2003. I've had no complaints or change requests from the owners of the feeds I've been using, but that's possibly because the site doesn't get very many visitors.

In short, Shelley: you're right, especially where TTS republishes full RSS feeds. Thinking that the burden lies on the copyright holder to stop copyright theft post facto by answering an email which may or may not reach them shows a sad lack of knowledge by someone who is supposed to be a thought leader.

We desperately need some lawyers experienced with the subject matter here. The presumption is that it is illegal - but that does not appear to be determined per-se. Roger might be onto something when he says that the entire web is a copyright violation.

I certainly can see a moral argument however. Splogs suck.

Hi Shelley,

Not what you want to hear but…I don't think there's a definitive yes or no answer to your question given the state of the law today and the way our laws develop. That is, someone will bring a lawsuit about this before long, and when they do a court will have to decide how copyright law applies, and what constitutes infringement, as to material published in a feed. I encourage you to listen to Bob Wyman's chat with me, it's a good complement to John's post. I come away from both concluding that Bob and John (and many others) have concluded a limited implied license of some kind goes along with publication of a feed. There are other circumstances where courts have found implied licenses to exist. This isn't one of them (yet?), but anyone is entitled to try to convince a court this should be the case. (Note John also mentions the fair use doctrine, which might be an independent justification in some circumstances.) IMO, there are good arguments to be made on both sides of the issue as to whether feeds entail some kind of implied license. I think in my interview with Bob he talked about why he feels publishing a feed is like broadcasting a radio signal (i.e., with broadcast there is no relinquishment of copyright, yet receiving or relaying the signal involves no infringement). When this issue comes before a court (and with so many businesses springing up around syndication, it's a good bet it will), its resolution will likely turn on these kinds of considerations, as well as the policy and "norm" points John nicely lays out. Where the litigants fall in the blog pecking order, or whether they hang out at Harvard, shouldn't make any difference to the court.

And if that's not equivocal enough for you, there's more: reaching "consensus" on this for legal purposes will still be a slow and uncertain process even *after* my hypothetical first lawsuit runs its course. Different jurisdictions can, and might well, decide to treat the matter differently. Where this happens (and it happens all the time), the outcome will depend on which jurisdiction's law applies — a question that itself is often uncertain and complicated where the Internet is involved!

Isn’t a personal aggregator, whether web-based or desktop-based, nothing more than a variation on a browser, in that it renders web-based material for an individual’s personal consumption?

Yes: I consider them both to be interchangeable (aggregrator webbrowser.

So Denise, what you're saying (and I realize that you're just providing some of the background of this debate) is that there's a possibility that a person loses some of their copyright protection by providing a full feed? In other words, because some people have made an assumption about the purpose of a feed, the copyright is irrevocably altered?

I know you're the lawyer, but to me this makes little sense. What does this imply then for photos in feeds, or music in podcasts, or any other number of creative works 'included' within a syndication feed?

Is Flickr, by automatically providing a feed of my photos, in effect, giving away some of my copyrights to these photos?

This makes no, no sense at all. My interpretation of this is that, in certain circumstances, the application of technology alters interpretation of the law.

So, are you glad you commented ;-)

(And thank you that you did…)

And to the earlier discussion, Roger, I don't agree that the internet is one vast copyright violation. When I publish online in a specific place, and I don't protect it with a password, I am not restricting who can read what I provide. But I still own the copyright on that material.

It's the republication that's at issue. I never thought that technology could be used to override copyright protection. Sure it makes it easy to replicate the material–but to actually override all or part of the law.

I think this should raise alarm bells for those who blithly provide full feeds, thinking that they're just being 'helpful' to their readers who prefer to read in an aggregator.

One last: interesting reading on implied copyright laws at BitLaw. And Denise, I will listen to that interview. I don't suppose there's a text transform of this anywhere, is there?

PS There's also this interesting thread.

Two things, both, as it happens, from Roger Benningfield:

1. "the entire web is a copyright violation". No. Linking is not republication. If I tell you the information you want is in the book with shelfmark PQ1632 L4 1969, I haven't republished that book, I've just told you where to find it. If I link to your page, I haven't republished the page, I've just told people where to find it.

2. "Publishing via RSS implies a license to aggregate, just as publishing via HTML implies a license to store content in a browser cache". That may be, but there's no implicit licence for a third person to aggregate. HTML cannot be read without a browser. That browser's behaviour towards the HTML is a foreseeable inevitable consequence of publishing in HTML. Hence the implied licence. RSS that I publish can be read by you without Top Ten, or other aggregators under the control of a third party, intervening. Top Ten republishing (if that's what they're doing) my content is not a foreseeable inevitable consequence of my providing an RSS feed. Even if I give you an implied licence to aggregate for your own personal use, that doesn't mean I give an implied licence to every Tom, Dick or Harry to aggregate for other people's use, and certainly it doesn't mean I give them an implied licence for commercial use.

HTML is unreadable is not a good argument. Strip a few < and > pairs and you have the content. Same as with RSS. If you click on a RSS button in most browsers today it renders the RSS. Both are usually sucked out the pipe from your web host and only afterwords are rules applied to it. PS Shelley RSS is not in your spelling dictionary so I must assume that there is no such thing as RSS.

Shelley: "But I still own the copyright on that material."

Absolutely. Unless I missed something (and there is an incredible chance that I did), no one is suggesting otherwise. An implied license doesn't take away your copyright… it descends *from* your copyright.

Shelley: "I think this should raise alarm bells for those who blithly provide full feeds…"

Complete agreement. That's one of the reasons I've been harping on the whole "Good RSS Citizenship" thing for the past year… publishers need to be aware of the consequences (and inherent responsibilities) of syndication, and aggregator developers need to start thinking about ways to play fair with authors, artists, and other creators.

jim: "Linking is not republication."

You misunderstand. I'm not referring to the surface stuff… I'm talking about the plumbing of the web. When AOL's millions of user's request a web page, they don't fetch it directly; the request is routed through AOL's caching servers, which store locally to feed their users. Same thing happens in most corporate environments.

Then there are services like Earthlink dialup, where they take the JPEGs in a page, recompress them in real-time, and feed the smaller files to the client. MSN-TV takes it even further, changing images, reformatting pages, *and* caching the whole thing.

The very foundations of the web depend upon Person A taking liberties with the transport, redistribution, and form of Person Z's content without Person Z's knowledge of consent. We just happen to have some fairly well-established expectations and community standards that make it all seem okay.

And it *is* okay, because without it, Internet fall down go boom.

jim: "That may be, but there’s no implicit licence for a third person to aggregate."

That's an interesting distinction, because it raises a question… is there a tangible difference between what, say, Bloglines does, and what Top Ten does? Is there a difference between a service where a user adds a feed subscription and a service where the feed subscription *is* the service?

jim: "That browser’s behaviour towards the HTML is a foreseeable inevitable consequence of publishing in HTML."

There's no *requirement* that browsers cache web pages… they could theoretically do without. It's just something that developers decided was necessary, and became an expectation.

The same thing applies to feed republishing. Of course, the same thing *also* applied to site framing back in 1998, and that was shot down pretty quickly.

I think that RSS is closer to the browser than the frame, though. Because when it came to framing, there were few reliable technological means to automatically opt-out of that kind of stuff… Javascript support was flakey, added to your page-weight, and so on.

RSS is different. You can use's Atom's summary element to give an aggregator partial-text. You can use robots.txt to shoo 'em away. You've got recourse above and beyond a lawyer.

Assuming, of course, that you're dealing with nice people.

Shelley,

Yes. You are right. The most important issue is how the content owner designates their content be distributed, whether it be free of copyright, cc-licensed or full copyright protection. And this need not be done in the feed, however, it should be placed prominently on the web site or blog that is publishing RSS.

If a site like toptensources can bother to aggregate all these feeds then they should bother to look at the actual sites and determine how the owner wants their content distributed. Anything other than that is sheer laziness and actionable.

For example, I have licensed my content under the Attribution-NonCommercial-ShareAlike 2.0 Creative Commons license. This means that the written content of each post is covered by the license and anyone may do with it as they wish as long as it is for noncommercial purposes, they provide credit and release the new work under the same license.

Failure to respect the license results in an infringing use under copyright law. Fair use will not save them if they are republishing the entire feed for commercial purposes.

Wow, lots to respond to, no time to cover it all as it deserves, but here goes:

Shelley, great pointers you added, thanks. I don't know of any transcripts of the ITC programs, unfortunately. And I'm always happy when I comment here. 8->

You asked, "So Denise, what you’re saying (and I realize that you’re just providing some of the background of this debate) is that there’s a possibility that a person loses some of their copyright protection by providing a full feed? In other words, because some people have made an assumption about the purpose of a feed, the copyright is irrevocably altered?" And Kevin commented, "If a site like toptensources can bother to aggregate all these feeds then they should bother to look at the actual sites and determine how the owner wants their content distributed. Anything other than that is sheer laziness and actionable." I agree with both statements, with a qualification in the case of yours: if a court were to find an implied license existed, the copyright would still exist, but the court would conclude permission for limited use is implied by the conduct. Re Kevin's apt statement, the fact that something is actionable doesn't mean it will necessarily carry the day, and I think that though the implied license argument would be an uphill battle it has some compelling aspects and could still potentially be successfully asserted as a defense.

Shelley, your observations highlight why I think it's borderline irresponsible for lawyers who practice in these areas not to pay attention to related blog discussions: nonlawyers who get the technology (usually far better than the lawyers) are much more likely to pinpoint how various scenarios can be legally problematic. I hope the folks who counsel the makers of weblog and other syndication tools (like those for photos; e.g., I understand Apple's new iWeb service builds in RSS?) realize there's a substantial contingent who think publishing a feed may have legal significance.

And your instinct is right on that it's not good sense or policy to think that a third party toolmaker's unilateral decision to syndicate a user's material could or should result in the scaling back of what otherwise would be the user's rights. IMO, a court would be unlikely to buy an implied license theory in the case of an unsophisticated user who doesn't grasp the intricacies of feeds or even perhaps know one is there. A court presumably is going to try to determine the reasonable expectations of the syndicator(s) and synidicatee(s), and assess the content owner's actions against that backdrop.

Shelley:

Your post is excellent, as are the responses of the broader community in your comments field. Obviously you disagreed with what I wrote; all the same, I think you put the problem very well, and asked a great question:

"To the legal beagles out there–point blank: am I right? Or am I wrong? No, ‘gentlemen of the court’ niceties; no A-list deference; no but it’s Harvard obfuscation; no Web 2.0 bullshit. As clearly and precisely as possible: am I right, or am I wrong?"

I (almost completely) agree with Denise Howell's comments in reply. (Denise, for the record, is among the most perceptive high-tech/Internet lawyers in the US, to be sure.) One of many problems with copyright law, when applied to new environments like online syndication and aggregation, is that it's not altogether clear how these several-hundred-year-old rules ought to work, exactly.

One note, on your original post: I meant no sleight of hand trick. Nor do I mean to suggest that my view on this matter is right just because of where I work. I mean to make an honest and thorough analysis of some extremely complex emerging legal issues, and to point out what makes me fret about them (that this will blow up into a big, unpleasant, destructive fight, which it probably will). I hope also that my various interests are adequately disclosed, insofar as they are relevant. Sorry if any of my engagement on this issue strikes you as disingenuous for any reason.

Also, it's absolutely right that you establish and retain full copyrights in what you wrote in your post. No two ways about it. It's yours. But the copyright analysis doesn't stop there. First, you'd have to assert your rights against someone you believe had violated your exclusive rights — like to publish the work, or to create a derivative work. The person you'd accused could then assert one of a few defenses. After quickly realizing that you did have those rights in the first place, a court would then take up the question of whether the use that you say violated your exclusive rights was excused for any reason.

Denise writes, in her second comment: "A court presumably is going to try to determine the reasonable expectations of the syndicator(s) and synidicatee(s), and assess the content owner’s actions against that backdrop." That strikes me as right-on, and the key aspect of this discussion. It's highly relevant what the community decides is a reasonable expectation around the syndication of feeds. The very cool thing about the law in this context is that we're actually *making* it, right now. Your post, and these comments, might well be totally relevant to how a court would resolve Denise's definitely-not-hypothetical lawsuit someday — there may well be the Shelley Powers+friends footnote in Judge so-and-so's opinion.

Yes, you're perfectly right that the copyright law in the statutory sense sense doesn't change on the web, doesn't change with web 2.0, etc. But these other doctrines that would be relevant to whether the copyright holder would win an actual case might well turn, at least in part, on what the community decides is appropriate as a norm. My main point is that it's a good idea for us to sort out what that norm is so as to provide guidance to the community at large, rather than to keep charging ahead toward what I genuinely fear is a train-wreck based on different expectations.

I should say, also, that after your post and these comments, among many others, I'm persuaded that Top10 Sources and others like it that seek to republish RSS feeds in a commercial context should strongly consider rendering less than a full-feed even when a full-feed is offered in RSS, even when the publisher has an opt-out.

-JP

I spent several years in the copyright/IP trenches as a lawyer and I note a couple of points in an entirely non-legal way.

1. At law you own what you write. That's copyright in a nutshell.

2. From that fact there are various ways in which your property can be distributed but the issue of ownership is not in question.

3. Web publication or RSS feed makes no difference: the stuff you write you own. The technology is not the issue.

4. "Fair use" is largely about quotation within a context of commentary.

5. As several commentors have pointed out, copyright - unless you happen to own a Congressman - is largely a matter of civil enforcement.

6. It is much harder at law to enforce a general claim of "copyright" than it is to collect damages for breach of contract.

7. It is possible to licence copyright material.

8. There are - as my faulty memory recalls - contracts of adhesion whereby, if you do "x" you are held to have agreed to "y". (Shrink wrap licences are a good example.)

9. There is no reason at all that you cannot state expressly that: a) full feeds of your blog are for personal use only, b) that an excerpt feed is available for anything other than commercial use, c) that any use of the full feed for other than personal use (possibly with a definition) means that the user has agreed to pay the blogger $xx.00 per post, d)that licencing agreements for multiple uses of full feed are offered subject to negotiation.

The point of doing this is that you are stating expressly that the material on your blog is copyright and offered for sale for commercial or other purposes. People who use that material have been warned and, when you find such use, you can draw their attention to the terms of your licence and the contract which they have entered into by using your material.

You would still have to litigate to enforce your claim; but you have not moved the issue out from the complicated world of copyright law and into the relatively more straightforward world of contract.

Ultimately, the issue comes down to devising a way of having user pay or content….I'm working on it.

I work in a Law department, but it's in Britain and I'm not a lawyer anyway, so nemmind.

This isn't really a clash of principles so much as a clash of default assumptions:

"it's mine and I say whether you can have it (I may not mind, but that's for you to find out)"
vs
"everyone can get at everything (unless it's something private, but in that case it should have been better hidden)".

It's not surprising that they're clashing, and it's not surprising that the two positions are being advanced by a qualified lawyer and a geek in good standing.

It's just that they seem to be on the wrong sides…

Shelley,

Your post is extremely well worded and I for one am in total agreement.

Copyright laws are in place, but unlike the laws down here on earth, they are not being upheld or enforced in cyberspace.

I am a web and graphic designer and have found two instances where I have been ripped off and others have used a photo in one instance (Ramada Inn, Benton, Arkansas) and in another case an entire web site complete with my web design credit and link to me was placed on another domain by a company that claims to design web sites.

In both cases I spoke with several attorneys, in Arkansas where I reside and also in New York. They all refused to take my case and told me that the courts would throw out the case if I filed a suit and to just drop it.

At any rate, I rounded up a few other designers and we began a blog as a last recourse to speak about copyright and eventually expose those who infringe on our own copyright. In time, there will be names named and screen shots displayed that show the misappropriation of our graphic and web design.

I have taken the liberty of linking your well worded post to our blog and BTW, from a designer, your blog is first class work.

Sherri

My own complaint with Top 10 Sources is that I cannot find any clear prevalent hyperlink back to the source site. Perhaps I missed it. If this site is re projecting the content, yet not providing a way to get back to the site, then it is stealing content, "No ifs, ands, or buts about it". But if they are republishing and providing those links, then me thinks the authors will get their fair share in whatever glory is coming. I spent about 5 minutes looking for these links back to the author's original articles. Maybe i'm blind, but i couldn't find any.

Thanks for starting this dialogue again, i'm tracking the dialogue on my node About: Top 10 Sources

"Copyright laws are in place, but unlike the laws down here on earth, they are not being upheld or enforced in cyberspace."

Sherri: Hey, a fellow Arkansan!

For what it's worth, there's an excellent chance that the "web design firm" that ripped you off was a fourteen year-old in his mom's basement. He probably doesn't have any clients, and outside of an allowance, nothing you could take from him in court.

Did you try contacting an upstream ISP, though? I've received a cease-and-desist from a corporate lawyer because of something one of my users had posted, and believe me, it can get your attention.

I just wanted to drop a quick note into thread thanking everyone for excellent responses.

I like Kevin's copyright notice at his site — it leaves no confusion about what one can and cannot do. Denise and John, I know that law is more likely made up of grays then black and white, but it seems to me that if we start black and white, we help to control how much ends up gray, and for how long. In other words, we can't say what will happen in a court case down the road, but we can all agree now that re-publication of full feed content is not fair use, nor is there an implicit license–unless a court case states otherwise, this would be copyright infringement. Then it's a matter of see what happens when this is violated in such a way that a court case is justified.

John, I do think that Top Ten Sources will avoid much of this as a problem if the site does excerpt the material, and/or link with permission. I think since you have a Creative Common license at the site, and it's not necessarily clear that each post is from another site, if you don't use excerpts and duplicate both content and photos and other material, with your creative common license, there may be confusion about what can be done with the material. As Seth Russell noted, the links to the other sites aren't as easy to find or differentiate.

(And as Denise will tell you, I can have fun with the CC license.)

Jay, I agree — putting in explicit copyright information into the feed should avoid much confusion. Or, like me, only provide an excerpt. If you provide an excerpt, the site then has to scrape your web page for content, and that tends to take us out of any 'implicit license' with syndication feeds.

Phil, does it help when I mention that I was a pre-law student before I switched to computer science?

Sherri, thank you so much for saying that about my design! I wonder if it isn't too conservative at times, but I wanted it to be subtle and complement the photos.

I believe that Mezzoblue ran into this, as did Zeldman. There is a fine line between being inspired by a design, and copying it. As Denise, I'm sure you remember from my creative Creative Commons test ;-)

Shelley: "…but we can all agree now that re-publication of full feed content is not fair use, nor is there an implicit license…"

The word "feed" is too broad, I think. If you give us an Atom feed with both an excerpted summary and full content, then I think any publicly accessible aggregator should use the summary. No question.

But if you give us an RSS feed with nothing but full content, it really shouldn't be the consuming application's job to read your mind and figure out how you want it used. Especially since some folks publish excepts in their descriptions and full content in content:encoded, making it difficult to guess what's going on from item to item.

If you'll pardon me soapboxing again, let me reiterate some things that I think would help make this stuff easier for everyone.

Publishers: Always put partial text feeds first in your autodisco list. That gives apps a hint as to which feed you'd prefer they use.

Publishers: Use Atom with summary elements, or insert atom:summary elements into your RSS feeds.

Publishers: Use robots.txt to turn away user-agents that you believe are abusing your content.

If you follow these three steps and a web aggregator continues to use your content inappropriately, I'll happily help you rouse the rabble 'gainst them.

WebAgg Devs: Obey robots.txt. No arguments about how you're not a real spider, blah blah blah… if someone goes to the effort to put a "disallow FooAgg" rule in their file, respect it. It's just the neighborly thing to do.

WebAgg Devs: Bias your autodiscovery toward the first feed advertised.

WebAgg Devs: If you're given a summary and content, always use the summary. Always.

WebAgg Devs: Either block search spiders from accessing archived third-party material, or make sure every page containing syndicated material is marked "noindex,follow" so that the original publisher doesn't loose any Googlejuice.

WebAgg Devs: Honor a 410 response by unsubscribing or ceasing to poll the feed.

BlogApp Devs: Give users a way to return a 410 on a selective basis. That will help in those few situations where a publisher can't upload a robots.txt of her own.

Shelley, you've been lucky enough to get free advice from John Palfrey and Denise Howell, two very expert legal minds on the issues you have raised. I agree with almost all of their observations.

As a copyright lawyer by trade, let me add a couple of other considerations.

First, it is important to remember that fair use is a use that is permitted without and even over the objection of a copyright owner. So generally "you may never copy this, no how, never" warnings are not going to matter in the fair use analysis. (Notices may matter to the scope of any implied license, however.)

Second, courts have approved uses of entire works, for commercial purposes, as fair uses. So it is impossible to state that no complete copying and republishing of RSS feeds could ever qualify as a fair use. It would depend on the facts, particularly whether the use harms the market value for the work.

Third, while you own the copyright from the moment your pen lifts from the page (or fingers from the keyboard), in the US you cannot go into court to enforce your rights until you register your work with the Copyright Office.

More importantly, unless you have already registered your work at the time the infringement took place, you will be limited to actual damages and have to pay your own legal fees. The practical effect is that, with respect to infringements where no actual monetary damages can be shown (and this likely includes most RSS feeds), bringing a lawsuit would leave you poorer than when you started. This is quite common in civil law, where we want to discourage lawsuits over trifling matters, even where a legal right technically has been violated.

Finally, many copyright lawyers would argue that simply loading an RSS feed into a browser or reader makes a copy for copyright purposes. The weight of authority in US copyright law says that RAM copies count as "reproductions" for copyright purposes. So you would need either a fair use or implied license defense to be able to read RSS feeds in the first place.

Fred, when you say just loading feed into RAM is making a copy, you're supporting what Roger said earlier: the entire web is in violation of copyright. I'll take it as granted that this introduces a great deal of grayness, right from the start.

I don't think there's any confusion about fair use here. Where the confusion arises is can a site republish an RSS full feed, in its entirety, especially for mass consumption, and possibly for commercial purposes.

What I'm hearing is: maybe.

When Microsoft engineers are asked if Windows is secure, they also answer: maybe.

Upon reflecting on the damange that 'maybe' has done in my industry, this, to me, puts publishing full feeds into a heavy risk category.

I think there is more at stake here than whether one can go to court to address loss of monetary value of the material. There is a sense of wanting some control over our work so that it can't be used in a harmful context, or for others greed. And there are sites that would republish the work, not for greed or harm, but because they believe they are increasing the benefit of this environment. If you asked members of either group would they like to go to court, they would say no. But they might also say is that we need some definitive understanding of what is "acceptable".

If we start talking morality, well, you'll lose most of us. So we phrase this discussion around one thing we do somewhat understand–the rules of property and ownership. Or in this case: copyright.

However, having said that, if someday this ever does get tested in court, we also know full well these informal discussions could be entered as some form of evidence. So, some wariness enters the picture, and with it, the grays.

In the meantime, all I can do is strongly encourage people not to publish full feed, but if they do, attach some form of copyright notice. For what that's worth (and maybe not that much).

I did _not_ know that not having the work formally registered at the Copyright office can have severe limitations in court. This isn't made very clear at the Copyright office site. Rather significant ommission. Thanks for that important piece of info. (Update: take that back, it says something to this effect in the FAQ. Again, another aspect of copyright that makes no sense–why provide for automatic copyright if it isn't treated the same as a formal 'copyright' in court?)

As for John and Denise (and Kevin and Jay) responding here, they did so as webloggers who just so happen to be lawyers; not as lawyers who sometimes weblog. As such, I thank them for participating, as I thank all the other folk who also participated in this thread. Hopefully, we all benefited equally: lawyer and layman alike.

Roger, I did want to say that you have some excellent suggestions. The point is, after this discussion, from a legal standpoint, it would seem that all of what we could, or could not, do is moot.

I wanted to respond to the "possibly the whole web is a copyright violation" thread by pointing out that Tim Berners-Lee's intent in creating http and html was to put information into a single space in order to create something much like a brain; that is, to create a space in which associations between disparate ideas could be made readily.

"In this concept, users could bookmark any place and return to it, and could make links into any place from another document. This would give a feeling of persistence, of an ongoing existence, to each page. It would also allow people to use the mental machinery they naturally have for remembering place and routes. By being able to reference anything with equal ease, the Web could also represent associations between things that might seem unrelated but for some reason did actually share a relationship. This is something the brain can do easily, spontaneously. If a visitor came to my office at CERN, and I had a fresh cutting of lilac in the corner exuding its wonderful, pungent scent, his brain would register a string association between the office and lilac. He might walk by a lilac bush a day later in a park and suddenly be reminded of my office. A single click: lilac … office." –Tim Berners-Lee

"My motivation was to make sure that the Web became what I'd originally intended it to be — a universal medium for sharing information." –Tim Berners-Lee

Any information that is put on the web will be used in the way Sir Berners-Lee describes, by design. I would argue that RSS does not fundamentally change this aspect of the design of the web.

Any author who "publishes" to the web would do well to be aware of this fundamental difference between such web "publishing" (if the word truly applies at all), and the traditional kind of "publishing" to physical, printed matter.

Any information that is put on the web will be used in the way Sir Berners-Lee describes

That's "Sir Tim". Not long ago the 'Tim' would have sounded wrong and we would have had to start calling him "Sir Timothy", but now "Sir Tim" is fine. But "Mr Berners-Lee" is el wrongo, and "Sir Berners-Lee" just makes you sound like, well, an American or something.

(Yes, it's daft.)

The law is still running to catch up with the Web, and running a bit too fast in some areas. In British law, for instance, viewing illegal pornography (e.g. paedophile material) is a less severe offence than producing or distributing it, which seems reasonable. But anyone looking at illegal material online is liable to be hit with the production/distribution charge, as the definition of the offence includes a clause about 'making a copy'…

Phil, yes, that's it exactly, and that's what I've been struggling to understand myself: what is the difference between traditional publishing, and the web? Not to drill what might appear to be an obvious thing into the ground, let me restate it: when one puts a document on the web, one has already given it to every single node on the internet that has a web browser. This is fundamentally — I would say qualitatively — different from a traditional "print" publishing model, where the act of publishing is to give to an individual person a single document that is accompanied by a legal contract. It seems a bit silly to assert this same contract in a space where one has already given a "copy" of the document to potentially every other person in the world! But wait, there's more: there is a separate and distinct value in linking (as Google has discovered, and as many traditional publishers, bound as they are by the "publishing" juridical/socio-/cultural mindset, seem to have failed, so far, to grasp). Moreover, linking is quite out of the control of the original author. One might be linked to for a reason distinct from ones intended content.

I apologise if I'm restating the obvious. I'm just trying to grasp what has happened with the advent of the web, and I've always held it as a precept that it would be difficult for me to recognize, given that I, too, am largely a creature of that Gutenberg-ian, print/publishing/copyright world. I've always presumed that this phenomenon, the web, would have the nature of something that is right in front of my face, but I would likely be blind to, precisely because of how I was enculturated. Given the scope of what has happened, I've thought it worthy of some sustained attention, and repeated attention to things I had thought I understood, in fine detail. I'm definitely not taking it for granted that I understand what's going on. It matters not a wit that I am a network administrator, and that I've worked with this technology for years: I believe that "cultural" (for want of a better word) frameworks are powerful, and shape what one does and does not see, as is plainly the case with the confusion we are witnessing in the British legal arena, among others.

Robert, It is easy to distinguish a single person's browser cache or their feed aggregator's cache which only one person at a time can read, from serving that same information from a central server that can be read by millions of people. I commented on your comment on my node About: Top 10 Sources

Re: comment #37 from Roger

The so-called web design firm and I say so-called because they don't possess the capability of true web design, was not a 14 year old in his basement, but a company in Fort Smith, Arkansas by the name of Kirkham Systems owned by Tom Kirkham. When I found our site on the other domain, I looked at the whois registry, got his name and address and called on him. After I gave him a piece of my mind and he threw my business card at me I left.

We did contact several attorneys as I said, including one in New York and after being advised to drop it because Kirkham Systems took down the site after I called on him. We found an attorney who wrote a letter to our client informing them that the misappropriation of the site needed to be compensated for in a monetary fashion and that we, as a company would sell the design to them. Their response was as we expected and it's all in limbo now with us still having the client's site online for whatever purpose we choose and Kirkham Systems with a holding page for the same client.

As I said, there will be screen shots and names on our own blog in time.

BTW, I reside in Arkansas, but not by choice…lol…

I am one of those transplants from the north, actually the midwest, labeled as damnyankees by many in the south, and they assure me that title is one word. After some 20 years in the south my accent has developed a southern twang and so I'm not easily spotted. To think I majored in English and then I married an Arky…lol

Re: Comment #38 - Shelley, I overlooked your mention of my compliment about the design of your site when I first posted this comment. Subtle is a wonderful descriptive term and you have achieved it. The colors are beautiful and easy on the eyes, the graphics blend well, the navigation is easy. In short, the design is what I refer to as "simple" on my own blog at http://www.cockleshells.net, I keep encouraging people to take that approach. However, your design is only simplistic to the naked eye. The CSS can be a nightmare to implement, but your finished product receives an A+ in my books.

Recently http://www.financialmanagement-strategy.com (also duplicated under the URL of http://financialmanagement-strategy.com with out use of “www”) has been putting http://www.morepartnerincome.com postings on their site. They have been so cavalier about materials they copy that they even included on their site my “Closed for the Holidays" post complete with photographs of my grandchildren. Records indicate that http://www.financialmangement-strategy.com is registered to Ovitz Taylor Gates in Australia, http://www.ovitztaylorgates.com. Surprisingly Ovitz Taylor Gates is a global management consulting and technology service company.

The Digital Millennium Copyright Act has a notice-and-takedown procedure for dealing with Blog pirates. I’m pursueing that course to start with.

Roger Benningfield wrote:
> WebAgg Devs: Obey robots.txt. No arguments about
> how you’re not a real spider, blah blah blah… if
> someone goes to the effort to put a “disallow
> FooAgg” rule in their file, respect it. It’s
> just the neighborly thing to do.
Roger, sorry. This just isn't right. The robots.txt convention was created to control spiders and crawlers — not systems that fetch specific known URLs. (Especially when those URLs are discovered via explicit "invitations to fetch" messages in the form of ping messages!). It would be a misuse of the robots.txt system to expand its use at this time to some new purpose not anticipated by the original developers of the system. Doing so might even encourage some aggregators to argue that those who did not avail themselves of the use of robots.txt were, by their non-use of the facility, simply making an implied grant of usage rights. (This is not what you desire.) Whether or not someone "goes to the effort" to place restrictions in a robots.txt file is largely irrelevant since there is no reason why non-crawling aggregators would even use the bandwidth and resources needed to read robots.txt files in the first place.
If we, as a community, want something like robots.txt that would apply to non-crawling syndication services and aggregators, then we need to do the hard work of defining the new method, in a proper forum, and getting it deployed. Trying to overload robots.txt to address an issue it was not designed to address is simply not the solution.

bob wyman

MHO, you are wrong. Republishing every entry of a partial content feed, is still a copyright violation. Case in point.
SER

Copyright law is basic the author or publisher has copyright. The issue here is not copyright but the usage of copyrighted material. Let us look at some basic situation’s that have been raised in the past. First a copyright notice is required with a statement of its indented usage defined for copyright to be determined to have been breached. Open any book or magazine and you will find the copyright notice “copyright Fred Smith 2006 you may not ……… etc and etc … without the express permission of the publisher or author etc how many web sites or arterials on the web have this declaration and believe that use of the © 2006 symbol will be protection its not, the declaration of usage defines the protection .

Now let take the case of 2 people that are required to give a presentation to the board.

Person A (Adam) has taken 16 pages from “ABC business practices case study 49” and copied this into his presentation.

Person B (Bob) has taken the same 16 pages from “ABC business practices case study 49” but he cut them from the publication and rebound them into his presentation.

Unless the copyright notice said that any part pages and or all the pages where not to be rebound pasted glued or affixed in any manner to any other publication for viewing to any third party Bob has not breached any copyright law but under all normal standards Adam has most defiantly breached standard copyright law.

Non profit or profit has been attempted to be used as a … “it is justified if it’s non profit”, sorry let me take you to court and if that’s your justification you will lose and be paying my court costs plus a little more. 1000’s of schools breach copyright every day but hell you would look like a jerk if you tried to sue them. But If you are the publisher of school books you have ever right to sue and you do.

The word copyright only protects you if so far as you are the author and or publisher and no other party can claim they are the authors and or publishers it also implies protection against reproduction but without expression this implied protection is false. For protection you must also define the allowed usage or not. E.g… This comment may not be reproduced in any way in full and or in part and is only to be viewed via the original published web site http://www.xxxx.com etc etc etc etc.

It is not required that you cover ever possible usage situation but that you show the intention. How the material is gathered or obtained has no bearing on the case.

Barry Walls.

Barry, I was aware that copyright violations aren't dependent on the second party making a profit, but isn't there a 'default' copyright? In other words, do I need to put some kind of copyright notice and allowed usage on my site to 'copyright' the material more effectively?

Barry,

I'd like to think that your last statement is true that a person is not required to cover every possible usage of their copyrighted material for it to fall under copyright protection, but a judge in Nevada has ruled differently.

According to his ruling, once a page is cached, even if the author removes it from their own site where it did fall under copyright protection, it then becomes fair use.

I'm not an attorney by any stretch of the imagination, but I do understand metatags and cache and I know what it's like to be ripped off and nobody give a damn.

A person must prove profit and loss in order to fight for copyright protection or so I'm told. That's not logical to me for this reason.

If someone gives me an expensive statue and I place it on my lawn and in the middle of the night someone comes along and steals it, I'll call the police and they'll look into it because a law has been broken. If they find the thief, that person will be prosecuted even though I didn't really lose anything because I didn't pay for the statue because it was a gift.

We can understand that concept because the law is in place, it has been tested and it has been enforced.

On the other hand, the law in cyberspace is in place, but it's not being enforced and I believe for the most part it's because those who have to make the decisions on whether the law has been broken or not don't understand the Internet. They don't know what a cache is, they don't know what metatags are, they have no idea that a pic is on a page, but that it's also located on a separate page on the server and a person can delete the page and leave the pic on its separate page.

I could drone on about details all day, but help me to understand this. Seriously, I've just finished making a post about this ruling at the following URL:

http://werdslink.typepad.com/piracy/2006/01/turning_cache_i.html

The more I think about this the more confused and angry I become. It can make a person just throw their hands in the air and say, "I give up! Take it!"

I'm still muttering to myself about this whole thing. I mean, I understand the legal doctrine of copyright — it's just that it doesn't seem to make sense in a medium like the web. What does 'copyright' mean when you've already given every person on the planet a 'copy'? I quote copy because I think a hyperlink is, effectively, a copy. On the web, it truly becomes irrelevant where a piece of information resides — the whole goal of the web was to eliminate that distinction. So, once you've put a document on the web, it is, effectively, everywhere. Whether or not it is in some cache somewhere seems to me to be irrelevant; in fact, the document is probably cached dozens of different places on its way from server to client.

I fully agree with the legal doctrines of copyright and patent. Reasonably applied, they can be enormously beneficial for society. They reward creators, and then, in a hopefully balanced period of time, revert ownership to the society as a whole so that fields of inquiry can be more fecund. They are, at base, a form of reciprocity. Tipped too far towards any one party, and the relationship becomes less than reciprocal.

But with the web, where the medium's essence is to remove 'space' between documents, or more generally ideas, what does 'copying' mean? Maybe, as was the case with radio, it's time to find a new form of reciprocity.

[…] In the end, public aggregation is not "a foreseeable inevitable consequence" of posting an RSS feed (meaning it is possible to use the feed without republishing it) and most people do not know of their own feed's existence. Thus, even if there is an implied license with RSS feeds, it almost certainly does not extend as far as to allow resyndication for any purpose. […]