License To Nil

License To Nil

Summary: Does syndicating material (i.e., via RSS or Atom) mean anything, in and of itself, from a legal standpoint?


Does syndicating material (i.e., via RSS or Atom) mean anything, in and of itself, from a legal standpoint?  Does it alter existing copyright law, which in the U.S. says that all rights are reserved by default, without the publisher taking a single further step?

Beyond a doubt this ranks among the top 5 unanswered legal questions of the Live Web.  (I'm going to have to decide what the other 4 are and do the requisite post.  If you beat me to it, let me know and I'll link.)

Most recently, the issue has surfaced in a debate between Michael Greenly and Robert Scoble, the crux of which is, as Robert puts it, "[is] putting a full-text RSS feed out giving everyone a license to copy my content and use it however they want[?]" 

There has been a lot, and I mean a lot, of informed discussion around the "what are the potential copyright ramifications of publishing a feed?" question.  See the pile of related links at the end of this post.  But there's an interesting twist to the Greenly-Scoble exchange.  And a similar twist in Bob Wyman's comment to my Riparian Rights post.  It's this:  when I've seen this subject come up before, it has been in the context of something done with the feed itself — e.g., the feed has been aggretated, then associated with ads.  Now, the implied license argument is going a step further.  The license urged is being divorced from the feed and activities directly related to the feed, and theoretically extended to activities like scraping and other copying that can be or is technically brought about irrespective of the feed.  This argument interprets syndication broadly to encompass not just the publishing and processing of a feed, but a myriad of reuses of the feed-distributed material.

I don't pretend to know what is going to happen the first time these issues come before a court.  Or, thereafter, what will emerge as the approach other courts adopt as well-reasoned and persuasive.  (If I were that prescient,  I'd be in another line of work altogether.)  What I do know is this conundrum is up for grabs, and — I don't want to alarm anyone, but — its outcome will turn on the quality of advocacy and judicial analytic skills brought to bear when it ultimately begins to be litigated.  When that happens, even though it might ultimately carry the day the "implied license" argument will have an uphill battle for the reason Robert summarizes as follows:

Ahh, so if it’s easy to copy it’s OK to steal?

American copyright law says "not true."

For those interested in more background, discussion, and chewing over of these issues, here's an incomplete but hopefully informative reading (and listening) list:

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Analogous

    Winning in Las Vegas is based on a random outcome. So past experience supposedlyhas no significance for what happens next.

    I'll assert that when a new or semi-new issue comes up in law, the winning approach will be the one most analogous to something in law that already exists.
    (Though which analogy is best provides cause for rumination, discussion, and income.)

    So I wouldn't ask you to predict what will happen after the next pull on a slot machine. But I think I can ask you to speculate what you think this issue is most similar to in existing law.
    Anton Philidor
    • Analogous

      >Winning in Las Vegas is based on a random outcome.

      Exactly. I was referring in particular to sports betting. You might make a guess based on the makeup of the team, quality of its coaching, track record against this and similar opponents, etc. But in the end, random, uncontrollable, illogical events often dictate the outcome.

      That's why it's impossible to speculate with any kind of predictable accuracy about what's likely to happen when these disputes begin to get litigated. We have no idea who the players will be, who their counsel will be, who the judges will be, and what level of advocacy and understanding will be brought to bear. That's true with any kind of dispute, but you hit on yet another key variable here: coming up with on-point analogies in prior case law to the Web syndication issue. This will require a good deal of creativity. Who can give me a few (any?) examples of an offline analogy to online syndication? The kicker -- the analogy also has to implicate copyright law. (So, something like conveyor belt sushi doesn't help.)
      Denise Howell
      • One obvious comparison...

        ... would be to an article in a no-cost newspaper left in stores, restaurants, barbershops, etc. whose value is increased by wide dissemination.

        The publisher (and consequently the author) wants the largest possible readership, but in the original context, meaning that the reader sees the ads that provide income.

        He would expect separate payment if an article were lifted and placed in another, similar publication with its own ad revenues, and maybe even in some kind of distributed document which neither pays nor receives money.

        Whatever the value of this speculation, it does seem likely that the analogy will compare publication of one sort to publication of another sort. Hasn't that been a guiding principle already in internet law?
        Anton Philidor
      • Sports betting.

        Given the context, I was considering wagering on pure random events. Think about video poker for a moment...

        But in the case of sports betting, skill is involved. A knowledgeable person can do better than one who does not know as much.

        In pari-mutuel wagering, the winners split all the money wagered, after the house has predated. But in sports betting, an approximation of random is supposed to be introduced by the point spread. Though a bookie wants to have equal amounts wagered on each side of a contest, rather than some pure calculation of likely outcome. Other factors not on the field, like fan fervor, have an impact.

        Though the will to win is the same, this type of legal contest is not entirely similar. The Judge will probably not decide the case on the basis of balancing the degree of lawyer happiness and unhappiness he produces.
        Anton Philidor
        • Sports betting.

          >The Judge will probably not decide the case on the basis of balancing the degree of lawyer happiness and unhappiness he produces.

          My point with the betting analogy is that it's not possible to know what a judge is going to do with a case, or what subsequent actions reviewing courts are going to take. I think there's just as much (maybe more) randomness involved in the outcome of legal disputes as there is in the outcome of sporting contests. In a perfect world, you consistently get advocates and judges who argue and apply the law in a manner consistent with legislative intent and good social policy. We don't live in a perfect world.
          Denise Howell
          • Imperfect world.

            As a character in Dickens correctly observed: "The law is an ass."

            Quoting a quote about the quote (with the punctuation left as in the source because I can't discern what else to do):

            [Mr. Bumble] had been accused of stealing jewelry belonging to Oliver [Twist]'s mother; and, after making sure his wife had left the room, he responded: "It was all Mrs. Bumble."
            Brownlow, the solicitor, advised Mr. Bumble "that is no excuse" because:

            "'You were present on the occasion?and, indeed, you are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.

            "'If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass ? a idiot. If that's the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience ? by experience.'"


            Part of the problem is, I think, the treasuring of logical consistency over many other considerations... such as the freedom of the internet.

            I disagree with your contention that Judges should "argue and apply the law in a manner consistent with ... good social policy."

            Lawyers are already fully represented in legislatures; they (or at least some of them) do not need a second bite of the apple in a forum in which decisions can be appealed only to... other lawyers who are titled Judges.

            That's too much weight to put on the law, and an overburdened ass is a pitiable sight.
            Anton Philidor
  • One obvious comparison...

    That's a pretty good analogy. I don't know that any such case has every been litigated, and if so, if a court has found that by making the publication available for free, and "syndicating" it by dropping it off where people are expected to pick it up, an implied license came into existence. In that offline situation, I'd be surprised to see a court find a license, in part because I think the related "norms" around the activity contemplate distribution but not copying and/or re-distribution. One could convincingly argue that different norms apply in the case of online syndicataion.
    Denise Howell
    • How convincingly?

      Courts appear to have a negative view of using someone else's property to make money. Even when that property has already been purchased once.

      Remember the NY Times against the freelancers? After losing the case, the Times eventually decided to make a deal with the freelancers or remove their articles. The case isn't a parallel, but it does apparently show an attitude about online reuse.

      You wrote:

      "In that offline situation, I'd be surprised to see a court find a license, in part because I think the related 'norms' around the activity contemplate distribution but not copying and/or re-distribution. One could convincingly argue that different norms apply in the case of online syndication."

      Re-use or redistribution is an issue even when access is free and desired by the distributor, no?

      And if in fact Courts like to use offline analogies to make decisions in online cases, I think the argument that online is different would have to be compelling. I'm not saying that it's impossible, of course, but only a limbo bar would be set low.
      Anton Philidor
    • The implied license is limited to syndication

      If you find a "free" publication on your doorstep, copyright law does not prevent you from moving that publication to another location, showing it to your friends, selling it to someone, combining it with many other similar publications and selling the bundle, etc.

      What you can't do is copy the content, reprint it, translate it, etc. Similarly, with online syndicated content, you have the right to do things which cause the original content to be distributed (syndicated) but you have no right to copy for purposes other than syndication. It's the same with web pages. The act of moving the pages through the net, holding them in memory buffers, etc. involves copying. However, that copying is ok since it facilitates distribution. Other forms of copying, (i.e. producing derivative works) are NOT permitted. The implied license applies only to syndication.

      bob wyman
      • The problem with that analysis....

        While technically true, the problem with that analysis is that the act of "moving it to another location" is a reproduction in the digital context.

        Ironically, as I pointed out yesterday, Scoble argued the opposite when HE was trying to republish feeds.