Simply put, really simple syndication isn't simple at all. While ease of use on the consumer side—one-click subscription—is improving through aggregators like syndic8 or NewsGator, finding and using RSS feeds continues to mystify most readers. If you see that orange RSS (or XML) button and click, you get a discomfiting view of the code that makes the feed work. I don't want to know. I just want to click, read, and go.

Yahoo! News exemplifies the way that RSS needs to work for readers: subscription simply ports in the desired headlines into a MyYahoo! page. This process requires absolutely no comprehension of RSS. For readers, at least, RSS is on the road to usability.

If only the path on the other side of the feed was emerging so clearly. Yes, a slew of vendors have stepped up to facilitate the process of creating, syndicating, delivering, monetizing, and measuring the success of feeds. Yet, as with so many publishing issues over the past decade, technology has raced ahead of the law.

In the post-New York Times v. Tasini world, publishers can no longer afford to rush and jump on the latest delivery mechanisms like giddy preschoolers to carnival rides. Sure, technologies exist to make it easy for publishers to deploy RSS, but can we also harness a world wide web chock-full of content that has—by virtue of that RSS button—become tantalizingly easy to tap?

Take another look at MyYahoo! and you'll see that it has rallied an impressive assortment of the "best" sources for any number of subject areas, all made infinitely more possible by leveraging the syndicate strength of RSS. Some corporate sites have gotten on board by including right on their homepages the headlines related to their offerings. Thus, non-content creators reap some of the value of others' content-creation labor. Sure, my magazine gets increased exposure at a news portal or vendor's site, but these outlets also get some of my content-cool without paying a penny of my editorial budget.

Now let's flip that coin again. Say I have a site that boasts that it is the one-stop shop for all the content news that's fit to print (www.econtentmag.com), but I know that there are others out there—be they bloggers or competitors—producing quality content on the subject. Think it's okay to port that info as attributed headlines into a spot on my site? Well, the experts say . . . maybe.

With my circle of acquaintances at EContent, I am lucky to be able to gather a pretty informed group to answer an email from me on this particular subject (not sure what other publishers do at this stage in the game—pay a lot of legal fees or take their chances, I'd guess). When I posed this very question to my content-wise clique, I wasn't expecting a definitive answer, but the variety of responses still surprised me.

Out in online community: "RSS headlines are a clear example of ‘content wanting to be free,' to paraphrase the great Yuri Rubinsky," according to contributing editor Bob Doyle. He cites numerous leading thinkers on the subject, including Lawrence Lessig and speakers at a variety of conferences, ultimately concluding that, "An RSS feed is a publication meant to be aggregated, subscribed to by individuals for personal use and by public aggregators, too."

Fred Meeker of Banner & Witcoff doesn't go quite as far as Doyle does, but he thinks that, in the case of RSS, we should consider implied license and not just copyright and fair use issues. "Since most news feeds are meant to be used and received by users, there is an argument that a copyright owner who creates an RSS feed has granted a non-exclusive license, either expressly or by implied conduct, that the source be freely distributed and/or redistributed," Meeker says. "Consent to use the news feed may be manifest via either silence or lack of objection."

At the other extreme is the position taken by Peter Strand, partner of the law firm Holland & Knight. Strand wouldn't advise picking up feeds without the authorization of the owner of the content copyright. "In general, the content of RSS feeds, including the headline and the article or story, is protected by copyright, and retransmission, distribution, or other uses without permission is copyright infringement," he says. "Headlines, like all short phrases, receive limited protection and can only be protected if the headline is sufficiently original and not a mere statement of facts."

Scott Abel, syndicated blogger at The Content Wrangler, whose day job is as a CM strategist, sits somewhere in the middle. "I believe that, as a publication that charges for content, your main issue may be that you cannot resell content that belongs to someone else," he says. "I'd imagine it is perfectly legal to make content available on a free section of your website. It would act as a draw to others and could complement your original content."

Ultimately, he captures the vagaries of RSS usage today, saying, "Unless your lawyer can point me to some recent case law about which I am unaware, I say to you, ‘The jury is still out on this one.'" Can we afford to wait for the verdict?

For more information, See Ron Miller's Feature: RSS Rights and Wrongs