One of the big problems for publishers using RSS is determining what's fair use, and they are not alone. The courts have reacted differently over the years, depending on the circumstances. Obviously, what happened to Dornfest fell clearly on the side of outright theft, but what about more normal blogging activities like linking, paraphrasing, or even direct quoting?
While the application may not be clear, Sunstein says that Section 107 of the copyright law does outline the parameters for fair use. "In Section 107 when they say fair use, you are supposed to look at certain factors. One is what is the character of the use—is it commercial or for nonprofit or educational purposes, among other things? The second thing is the nature of the copyrighted work and the amount and substantiality of the portion used as related to the copyrighted work as a whole—how much did you take? And the last thing, what is the impact [of your use] on the copyrighted work?" Sunstein explains.
Yet even when all (or most) of these criteria are met, it is not always clear if a situation violates copyright. Sunstein cites an example where in 1989, the group 2 Live Crew created a rap parody of the Roy Orbison song "Oh, Pretty Woman." Sunstein says Orbison sued 2 Live Crew for copyright infringement, and in spite of the fact that they copied the entire work, the court found in favor of 2 Live Crew because they created a new version in a genre that did not compete directly with Orbison's work. "It's completely clear that the whole song is copied, but they completely transformed the song that Roy Orbison did, so that's OK. . . . Even if you copy, and copy the whole bloody thing, that's OK if you've done a transformative job of it," he says.
To complicate matters further, Jason Schultz, intellectual property attorney at the Electronic Frontier Foundation (EFF), says that the courts have ruled on another level they call implied license. This rose out of a number of lawsuits involving Google. Some website owners challenged the legality of capturing web pages automatically using spider software and storing them in a database. "Is it legal? One court said it was legal to do that, and one of the main theories is an implied license. The courts reasoned that when you put something on the internet and it's free for everyone to look at, you are giving a pretty broad license for folks to use it in some way, and Google search engines, this court found, were part of that freedom," Schultz says. Whether you could copy and repackage this same content on CD-ROM and sell it is another question, says Schultz, but for Google in this instance, this type of copying was acceptable.
RSS In The Middle
Schultz says that RSS comes into this somewhere in the middle between fair use and implied license, especially where linking, quoting, and other normal blogging activities are concerned. "People put things out on RSS feeds and websites often without restrictions. And terms of service at the bottom of a web page often don't really apply [in a legal sense]. Those things are more about social norms than laws. Once you put something out there, people use it in unconventional and unpredictable ways," Schultz says.
If a content owner feels you have crossed the line, they can always ask you to take the content down, says Mia Garlick, general counsel at Creative Commons, an organization that works to provide content owners with a more flexible copyright that allows for different levels of sharing (over and above fair use and the default copyright position). In fact, the Digital Millennium Copyright Act, a law many saw as a way to protect large content owners, provides a way for small copyright owners to demand that you take down content they feel is illegally posted. "Under the DMCA, there is a scheme that says if you are hosting content that other people have put up there, and you receive a notice [requesting you take it down], you won't be liable for damages if you act promptly and take it down. This is a useful tool for all kinds of publishers, large and small, because there is an incentive to remove it expeditiously." She says once it's down, then the parties can negotiate a settlement.
But Garlick points out that the parties can't always agree and in some cases, the fight ends up in court, where a judge must decide. She says it happened recently when a for-profit publisher in Holland used photos from Adam Curry's Flickr account in an article without his permission. He had a Creative Commons license that allowed for non-commercial use. Garlick says the Dutch court found in favor of Curry because the publisher had violated the terms of his Creative Commons license.