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.