RSS: Not Your Father's Free Magazine

RSS: Not Your Father's Free Magazine

Summary: Some interesting discourse was prompted by my License to Nil post, and since it raised points I believe are new to the implied license conversation I wanted to flesh them out more fully here. Specifically, both Anton Philidor in my comments and the Inhouse Agent on his blog have hit on an offline analogy to online syndication that is bound to make its way into arguments, briefing, and reasoning on the implied license issue when it eventually winds up in court.

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TOPICS: Legal
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Some interesting discourse was prompted by my License to Nil post, and since it raised points I believe are new to the implied license conversation I wanted to flesh them out more fully here.

Specifically, both Anton Philidor in my comments and the Inhouse Agent on his blog have hit on an offline analogy to online syndication that is bound to make its way into arguments, briefing, and reasoning on the implied license issue when it eventually winds up in court.  I believe they came up with the analogy independently, which only underscores the closeness of the fit to the circumstances — close, but no cigar.  Both have rightly suggested that a copyright owner/RSS publisher is likely to counter an implied license argument by pointing to those free magazines most folks in the U.S. (and I assume this is probably an international phenomenon) are used to encountering at the local grocery store, hair salon, children's gym, etc.  Since these typically local/regional, ad-supported publications are voluntarily put out in the world for free by their publishers, who hope they will reach a wide audience (to satisfy their advertisers and maintain their business model), both Anton and the Inhouse Agent argue that if such a distribution model has no impact on the rightsholders' otherwise applicable copyrights, neither should online syndication.  As Anton puts it,

[The rightsholders] 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.

The Inhouse Agent likewise muses, 

Why is a blog with an RSS feed any different from one of the paper publications that you can pickup at the exit of just about any restaurant or supermarket. You know, the ones that are trying to sell houses or report local news. IHA receives in his mailbox each week many paper publications that are free, including a newspaper and trade magazines. They are free (like most blogs), sometimes you have to subscribe by filling out a post card (like copying an RSS link to your aggregator). Does anyone think that they have a right to take an article from a trade magazine like Law Technology News or Intellectual Property Today and republish it? Go ahead and try, I bet the publishers of these magazines would disagree. Finally, many blogs, like the above mentioned magazines, are advertising supported.

IHA can’t see any meaningful difference between a blog and a magazine. An author is an author, and a copyright is a copyright. Therefore the law should apply in the same way.

There are at least two problems with equating online syndication with this kind of free distribution model in the offline world.  The first problem was also brought out in my comments, by Bob Wyman and Tim Marman.  Bob argued that the implied license he believes will and/or should be found to apply to RSS 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.

And Tim in turn pointed out that in the online world, unlike in the offline world, even the thing everyone agrees you can do with a free print publication — move it around and share it (I'm not sure I agree you could also sell it with impunity, but perhaps) — is a potential copyright violation because "the act of 'moving it to another location' is a reproduction in the digital context."

Bingo, but that doesn't undermine Bob's point, it makes it.  And it illustrates why the free offline publication analogy, while superficially attractive, doesn't translate closely enough to the norms, policies, and legal principles of the online world to be definitively dispositive of the copyright issues here.  Because of the very problem Tim emphasizes — that moving things around on networks requires copying, while moving things around offline requires a good pair of sneakers, a truck, or FedEx — the law goes out of its way, using doctrines like fair use and implied license, to specify that some of this sort of copying is ok because the rightsholder is not harmed by it (or indeed encourages it), and the copying is done to serve a greater public good (like enabling the existence of search engines).  A court determining the RSS/implied license issue accordingly will at least have to give serious consideration to the viability of implied licenses in this context, because in the absence of some kind of accommodation we're looking at a situation where an activity everyone agrees is legal from a copyright standpoint in the offline world is not given similar treatment online.  That sort of dissonance and arbitrariness in the application of existing precedents to new circumstances is the kind of thing good judges try to avoid.  And rightly so.

Another place the analogy falls apart is the heightened control the free magazine publisher maintains over the distribution process, when compared to that of someone distributing via RSS.  In the physical world, a publisher dictates just how many copies are dropped off or mailed out, and knows that while there will be some additional passing around, which in our free magazine example the publisher welcomes, it will likely be fairly limited in scope and reach.  The volume, scope, and reach of material distributed via online syndication, by contrast, are bounded only by capacity; in other words, assuming the network is humming along and the bandwidth needs are appropriately met, the volume, scope, and reach of distribution are not bounded at all.  The fact that an online syndicator undertakes that task with full awareness of the technical consequences (1) makes the situation different from controlled, free magazine distribution, and (2) is likely to weigh in the judicial balance toward the finding of some kind of implied license — a limited one encompassing "white hat" and not "black hat" copying and reuse (and parsing which is which becomes a whole separate problem, of course), but some kind of license nonetheless.  (If, by contrast, a dispute were to involve a syndicator who was doing so unwittingly or unknowledgeably, like the novice blogger or podcaster whose publishing tool produced a feed by default but didn't explain the process, this could shift the balance away from implied license and back toward "all rights reserved.")

I'm very appreciative of the thoughtful analyses and creative thinking that Anton, the Inhouse Agent, Bob, and Tim have added to the discussion, and (greedy gal that I am) I want more, more, more.  If you can think of additional reasons why RSS publishing isn't like free magazine publishing, or if you think I'm off base and it's more like it than not, I want to hear about it in the comments here, in email, or on your blog or podcast (and please trackback or send me the link).  I continue to consider this a tricky and cutting edge issue, and what we're engaged in here is something I like to call participatory law.  I use that term to refer to anything that helps make the legal process more transparent and two-way in nature, be it a law school vlogging its legal clinic, or public analysis (that is persistent, searchable, and findable by advocates and lawmakers alike) of the pros and cons of the various possible outcomes of an unresolved legal issue.  Such public discourse is particularly valuable when it includes the insights of those who are close to the problem, and I know that the ins and outs of online syndication are second nature to many of you reading this.

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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  • Value from context.

    If someone distributes the free publication as is, the publisher is pleased because of the greater dissemination of the advertising.
    If someone removes material from the ads, then the publisher has lost the value of the additional distribution.

    That original context issue is important to the Courts, as shown in the NY Times and stringers case, in which the decisive factor in Justice Ginsberg's decision was movement to a database.

    So this comment appears incomplete:

    "... the law goes out of its way, using doctrines like fair use and implied license, to specify that some of this sort of copying is ok because the rightsholder is not harmed by it (or indeed encourages it), and the copying is done to serve a greater public good (like enabling the existence of search engines)."

    If the issue is quotation outside context, the rightsholder would not be encouraging, so your first point does not apply.

    In the case of a search engine, the search result is links to the material in the original context. So your second point does not apply.



    The places selected for distribution of the free publication are intended to facilitate people reading the material, then leaving it for later customers. If the publisher could make distribution more uncontrolled he would. So long as the ads accompany the material.

    So your second comment seems of doubtful applicability:

    "The volume, scope, and reach of material distributed via online syndication, by contrast, are bounded only by capacity; in other words, assuming the network is humming along and the bandwidth needs are appropriately met, the volume, scope, and reach of distribution are not bounded at all.

    The fact that an online syndicator undertakes that task with full awareness of the technical consequences (1) makes the situation different from controlled, free magazine distribution, and (2) is likely to weigh in the judicial balance toward the finding of some kind of implied license ? a limited one encompassing "white hat" and not "black hat" copying and reuse (and parsing which is which becomes a whole separate problem, of course), but some kind of license nonetheless."

    The fact that online distribution is more successful at distributing material in its original context only makes the internet a more successful means of distribution; it doesn't change the goal or the requirements of the publisher.

    How much of a penalty for success should there be?


    I may well be overlooking an implicit point in your argument. Making it less implicit would be appreciated.
    Anton Philidor
    • PS

      When I read bedtime stories to my daughters I always began with the copyright, sometimes as rollicking comedy, sometimes as tragedy so bleak and heartrending that I could barely bring myself to say the final words.

      Though my only reward was stuffed animals thrown with some velocity, I still have sentiment for the statement beginning, "All rights reserved..."
      Anton Philidor
    • re Value from context

      "If the issue is quotation outside context, the rightsholder would not be encouraging, so your first point does not apply.

      In the case of a search engine, the search result is links to the material in the original context. So your second point does not apply."

      Context isn't a factor in whether a party can state a copyright infringement claim. The claim turns on whether there has been, for example, unauthorized copying or the creation of a derivative work. Possible defenses to the claim include fair use and implied license, which turn on the nature of the use and the rightsholder's intent, respectively. Thus, in your example, it's not removal of the ads that initially initially is the problem -- it's unauthorized copying and reuse. The question then becomes whether there is either something about the use, or something about the rightsholder's conduct, that protects the copier/re-user from liability.

      My second point -- control over volume, scope, etc. of distribution in the offline world vs. lack of it in the online one -- goes to the issue of the defense of implied license, which requires an examination of the rightsholder's knowledge and intent. A party seeking to assert the implied license defense might point to the control distinction, and the rightsholder's knowledge of it, as evidence that a certain degree of what otherwise would be unauthorized copying and reuse was actually contemplated by the rightsholder. It wouldn't be a question of penalty for success -- it would be a question of knowledge of it.
      Denise Howell
      • Revising the original work.

        Removal from context is a revision, as held by the Supreme Court in the Tasini case.

        From a discussion of the ruling's significance:

        The newspapers defended their action on the basis that the articles formed part of a collective work and that what had been licensed was simply "part of a revision" of that collective work and so fell within the presumption set out in the statute.

        The Supreme Court in 7-2 decision rejected this argument because as incorporated in the NEXIS database or the CD-ROMs, the articles were presented as "stand alone" articles not in the context of reproductions of the entire newspaper or magazine in which they had originally appeared.

        [If the rightholder intended to make money from the ads, part of the context, this appears significant.]

        [Further quote after eliding:]

        Justice Stevens, with whom Justice Breyer joined, agreed with much of the analysis of the majority but reached a different conclusion as to what constituted a "revision" of the original publication.

        He noted that what was actually done by the newspapers was to supply a collection of ASCII files, one for each of the articles making up an edition of the publication for which electronic rights were being licensed. In his view such
        a collection of individual ASCII files, should be treated as a "revision" of the original edition, as long as each article explicitly refers to the original collective work and as long as substantially the rest of the collective work is, at the same time, readily accessible to the reader of the individual file.

        [That's consistent with my observation about search engine results, no? It is, at any rate, not the majority view.]

        http://www.ladas.com/BULLETINS/2002/0202Bulletin/USComputerDatabases.html

        Could anyone decide that all copyright holders expect removal from context? Or would he be required to ask permission?
        Anton Philidor
        • Shouldn't have said "revising".

          Two different meanings are possible, and one of them does not apply.
          Anton Philidor
        • re Revising the original work

          A court could easily hold that a rightsholder providing a feed expects removal from context. In fact, you should consider whether the act of reading a feed's contents in its entire original context defeats the whole purpose of supplying or reading the feed. If you want to read the contents in context, you go to the original site. If as the rightsholder what you want to ensure is that your readers experience all the original context, you don't offer a feed. A feed's essential function and purpose is to take some of a site's material and push it out in a different, machine readable format, precisely so that it can be read in different contexts -- some of which the rightsholder may approve of and some not.

          You seem to be saying that removal from context = infringement, and because cases involving copyright infringement (but not online syndication) have permitted removal from context to play a role in determining infringement, this means removal from context also = infringement here. I don't agree. I don't consider the nature of syndication -- either technologically or philosophically -- sufficiently similar to situations analyzed in existing case law that it's possible to extrapolate absolute conclusions about how these disputes will (or should) come out.
          Denise Howell
          • Closer to agreement...

            ... even if only agreeing to differ.

            As you wrote:

            "If as the rightsholder what you want to ensure is that your readers experience all the original context, you don't offer a feed."

            True, and you don't allow anyone else to offer a feed without your permission. The control of material on the web is as complete as material published in the broadsheet.


            As we also agreed, analogy can be a powerful argument in new areas of law. The broadsheet analogy is obvious, as you proved by showing someone else thought of it.

            In your second paragraph you're asserting disagreement, but I think you can continue to agree that it's likely to arise, and will have to be countered, no?

            Quoting:

            "You seem to be saying that removal from context = infringement, and because cases involving copyright infringement (but not online syndication) have permitted removal from context to play a role in determining infringement, this means removal from context also = infringement here. I don't agree. I don't consider the nature of syndication -- either technologically or philosophically -- sufficiently similar to situations analyzed in existing case law that it's possible to extrapolate absolute conclusions about how these disputes will (or should) come out."

            Another piece of the analogy is that feeds have a similarity to databases as collections, so the possibility of treating them similarly is increased, no?

            Could you make a single statement of the basis for rejecting the analogy?


            I suspect that you see the internet as less conducive to legal restrictions than other distribution mechanisms, but isn't profit as much a cause for legal concern online as elsewhere?

            Couldn't the ease of violating rights make Courts more restrictive online?


            I was impressed by the decision in the p2p case. The Court was solicitous of the freedom of the internet at the expense of vulnerability to the music rights holder, but intervened when the illegal activity was making a profit.

            It seems that as soon as profit, revenue becomes involved Courts become more serious in questioning the extent of freedom.
            Anton Philidor
          • re: Closer to agreement

            "Another piece of the analogy is that feeds have a similarity to databases as collections, so the possibility of treating them similarly is increased, no?

            Could you make a single statement of the basis for rejecting the analog"

            Just that I have a hard time seeing much similarity at all, beyond the fact both are expressed in bits. Feeds and databases are apples and oranges. The connotations of their publication are different. A database is a data repository. A feed is a data delivery method.

            "It seems that as soon as profit, revenue becomes involved Courts become more serious in questioning the extent of freedom."

            The RSS implied license question is at least as much, if not more, one of intent than of freedom. There generally is a profit motive (economic, reputational, etc.) involved in the act of publishing a feed -- not just in the act of reusing or republishing it. There are similar motives involved in publishing a Web site. The most persuasive analogies for considering the question will likely come from the online world rather than that of print and paper. Courts have blessed the existence and methods of search engines, even though much of what they do can be (and has been) cast as infringement of various intellectual property rights. These decisions have turned on a blend of considerations: the extrapolated or express intent of the publishing rightsholders, and the interpretation of statutory and case law in a way that weighs the interests (economic and otherwise) of the parties and the public. As I said in my initial post, I have no idea what courts will do with the RSS question once it begins to be litigated. I hope, however, that the approach adopted will be similar to that I just described; I think it offers the best opportunity for arriving at the proper outcome.
            Denise Howell
          • There are also aggregated or "synthetic" feeds...

            Denise, I think you may be defining a "feed" too narrowly. In addition to the feeds whose content has a one-to-one correspondence with the content of some blog, there are also aggregated or "synthetic" feeds that are composed as "mere collections" of items selected from one or more feeds. These synthetic feeds are commonly generated by syndication services and are often generated by individual sites when they produce secondary, duplicate feeds for items published in particular categories. (i.e. some sites will have a primary feed which contains all items published and a series of category specific feeds.) It should also be noted that on the technical side of things the Atom format defines "entry" as a "top-level" item and permits entries to exist without enclosing feeds. It should also be noted that the designers of Atom provided for "rights" to be associated with both individual entries and with a feed as a collection. (I realize that designer geeks aren't lawyers or legislators, however, I think that some consideration should be given to their intent when evaluating these issues since that intent probably expresses some sense of the community's expectations and assumptions...) The point of this is that from a technical point of view, the "feed" is simply a wrapper for a collection of entries. The interesting bits in a feed are the entries themselves. As part of the process of syndication, those entries can appear in many different feeds.

            I think we might find that Anton is correct in that in some situations we'll one day find a court claim that a feed is a "mere collection or listing." This might actually address a real problem since, given the technology of aggregation and syndication, it is quite possible for two feed generators to produce substantially identical feeds via purely mechanical means.

            bob wyman
            bobwyman
  • Is "magazine" the correct analog? What about music?

    Denise, I've blogged about yet another difference between syndicated content and a magazine. The basic idea is that syndicated content differs not only in that it comes with limited implied licenses to copy (as with HTML) and to syndicate, but there is also a limited implied license to "perform" the content or produce derivative works. For more detail see my unfortunately wordy and rambling discussion at:
    http://www.wyman.us/main/2006/09/magazine_or_mus.html

    bob wyman
    bobwyman
    • Is the analogy weakened?

      Your discussion gives two reasons for rejecting the magazine analogy.

      First, responding to the statement:

      "The publisher of a magazine has total control over the presentation of content in that magazine. However, the publisher of an RSS/Atom syndication feed has very little, if any, 'control' over the presentation of data published in a feed."

      [One control would be a statement that because the publisher has determined that the value of the piece would be lost in a feed without the ads, such a feed is not authorized, and will be considered a violation of the publisher's rights.
      This is similar to any other control over publication, is it not?]

      ... you observe:

      "The implication of this difference is that we might be making a mistake when we compare web and RSS/Atom syndicated content to normal text-based paper publications. It might be more useful to consider such content as though it were computer programs or even music!"

      But the value of both computer programs and music arises from the material itself. In fact, a computer programs value is in the idea expressed in the computer program; it can, after all, be patented.

      Thus, those examples would not be equivalent to the magazine analogy, having sacrificed what is of most value to the producer of the material.



      Your second observation concerns the potential for damaging the material in its original form:

      "XML, HTML, RSS, Atom, etc. are all members of a class of markup languages that quite intentionally do *not* have fixed presentation formats or styles. Thus, a content creator can never be sure what their content will look like when presented to a user."

      And free magazines left in a doorway may be damaged by the rain without lessening the ability of the publisher to control re-use.

      Like the publisher of printed material, the publisher of the online source material makes an effort to present the material as well as possible. A failure in the print process, even one with a reasonable likelihood of occurring, would not be a very material change, would it?

      Isn't this equivalent to saying, "There's a large blotch on page 3 because of using an old press and cheap paper. Therefore I can do anything I want with the material in the publication."



      The analogy to a free publication is only obvious, not automatically correct. But these differences do not to me seem compelling.
      Anton Philidor
      • Digital content relies on *readers* to determine presentation

        Anton, The variablility in presentation of XML/HTML/RSS/ATom data is an intentional aspect of the formats -- unlike the mistakes or environmental effects that may alter printed magazines. The publisher of a printed magazine expects and intends that the content in the magazine will be viewed in the way that it was printed. A publisher of digital data may hope for content to be viewed in some specific way, however, they have no basis to expect that it would be so since they are using a form of publishing that explicitly leaves issues of presentation to the reader and only allows the writer an ability to "hint" at what a "correct" presentation might be. This is, I think, a significant difference...

        The interesting question here is: "Are there limits to the presentation choices that readers can make?" If so, what are the limits? For instance, if the content is encoded to require a "Sans Serif" font, but none is available on the output device, clearly, it should be ok to substitute a Serif font. But, is it ok to do so for aesthetic reasons? On small devices, you often can't display all the fields in a syndicated entry. However, are you required to display them ALL if you don't have device constraints? (Certainly, this isn't the current practice.) At what point does manipulation of the publisher's content cross the line from "ok" to "not ok?"

        bob wyman
        bobwyman
        • Degree of damage.

          Your argument appears to be that there is greater likelihood of unanticipated change in the way various softwares in different devices read a web page compared to the effects of cheap ink on cheap paper exposed to the elements, and therefore the publisher's rights to what he presents online have been lessened.

          The difference in anticipated problems seems a subjective decision. More, I have difficulty with the idea that the possibility of accidental, software/hardware change justifies intentional change by someone making use of the material without specific permission.

          Your question seems to have more to do with whether a given software on a given device can have an unacceptable rate of error in presenting web pages. I'll have to think about that.
          Anton Philidor
          • Missing the Point... Feeds are designed to be changed!

            Anton, you're missing the point. The formats in which feeds are encoded do not specify how the feeds are to be presented and the formats do not require that any or all of the elements in the feeds are presented to the user. These formats are intentionally designed to leave presentation issues to the users of the feeds rather than to the creators of the feeds. Thus, differences in the way feeds are presented are not the result of "errors" or "accidents" -- such differences are an inevitable, expected and designed-in property of the way that feeds are encoded. This is fundamentally different from what happens with paper, film, radio, etc. In those media, the creator expects to be determining the presentation of the content.

            bob wyman
            bobwyman
          • So feeds are intended to remove the original context...

            ... even though the original context may provide the value to the publisher of the material being gathered for the feed.

            An argument in Court that feeds reduce the publisher's income could not be disputed when that income relies upon the original context.

            Your point seems to be supporting rather than diminishing the value of the broadsheet analogy. If loss of the original context is significant to proving infringement, then a method of copying which assures loss of the original context removes one issue from dispute.

            Unless I'm missing the point again.
            Anton Philidor
          • Missing point again: Content loss is expected by publisher....

            Anton, whether or not context is lost and whether or not the publisher might have had higher revenues if context were maintained in irrelevant in this case since the publisher of an Atom or RSS feed knowingly provides the content in a format that is explicitly intended to permit isolation of content from context (i.e. entries from feeds.) This is not the case with paper magazines. With the exception of things like coupons that can be cut out. A feed entry is like a coupon with pre-perforated cutlines. No copyright holder can attack you for creating a "derivative work" by cutting a coupon out of a newspaper -- similarly, you can't complain about entries, or fields being cut out, dropped, etc. from Atom files -- unless the act of doing so is for some purpose other than those covered by the implied license.

            bob wyman
            bobwyman
          • Missing the Point... Feeds are designed to be changed!

            Anton, you're missing the point. The formats in which feeds are encoded do not specify how the feeds are to be presented and the formats do not require that any or all of the elements in the feeds are presented to the user. These formats are intentionally designed to leave presentation issues to the users of the feeds rather than to the creators of the feeds. Thus, differences in the way feeds are presented are not the result of "errors" or "accidents" -- such differences are an inevitable, expected and designed-in property of the way that feeds are encoded. This is fundamentally different from what happens with paper, film, radio, etc. In those media, the creator expects to be determining the presentation of the content.

            bob wyman
            bobwyman
    • re Is "magazine" the correct analog? What about music?

      Thanks! I replied over there: http://www.wyman.us/main/2006/09/magazine_or_mus.html#comment-21890794
      Denise Howell
  • Thoughts on the effect of distribution

    Denise,

    At first I didn't think your argument on the limited vs. unlimited distribution would hold up. One reason is that this would infer there is a threshold that one must cross before you lost certain rights over the work. My trouble was trying to determine how a court could determine that threshold. The other thought that bothered me was the fact that even a limited distribution printed work could become unlimited in distribution by any recipient through a scanning process. Lets be honest, most scanners today are not much more difficult to use than a cut-and-paste. (Granted this would also be a transformation...but lets not go there)

    However, your argument prompted another line of thinking. If you look to other areas of the law, you can find some similar policy rational that courts used to find/not-find liability when processes that were traditionally manual became automated. Specifically I'm thinking of the UCC Article 3&4 with respect to banks and check-processing. At one time, a customer's bank (the drawee bank) had to manually confirm the signature on each check that was received for payment. Over time, the banks switched to a process called "bulk filing" where the checks were automatically processed. This precluded the manual confirmation of the customers signature that was required. The issue involved was whether the bank was liable for a forgery of the customer's name (the traditional rule under Price v. Neal) in the age of bulk filing.

    Even before the UCC was revised to account for this new process, the courts said no liability on public policy reasons (subject to a rule of reasonableness on $ amount). The rational is that the banks, by switching to the automated process were able to provide a low cost service that made banking more widely available to the public and provided significant public benefits. The courts reasoned that the bank was still liable, but that in return for the increased benefits (lower cost), the customer had a responsiblity to review their checks and report any forgery.

    A similar argument (at least to me) can be made for RSS that the potential harm caused by a loss of control by the author warrants different treatment than is allowed by traditional copyright law. By utilizing RSS, the author is making the work more widely available, at lower/no cost to provide a significant public benefit. Further, similar to the check situation where some responsibility shifted to the customer, a copyright author who uses RSS may be expected to do more to police his work(s) to ensure that they are being used properly. At least to me, this seems to be similar to the UCC/banking situation discussed above that the public benefits outweight the potential harms.

    Hopefully this makes sense (either that or I'm completely out in left field :) ) It must be that stare decisis has been pounded into me, but I feel better when there is existing law to draw on, at least by analogy.

    Thanks for prompting such a stimulating discussion.

    Dave (aka Inhouse Agent)
    Inhouse Agent
    • re Thoughts on the effect of distribution

      I think this is precisely the kind of public policy (and intent) focused analogy that could be very important in resolving these issues, kudos to you for hitting on it, and thanks for musing on it here.
      Denise Howell