Over the past two years since IHA has started reading blogs and listening to podcasts, Denise Howell at Bag & Baggage has been one of my favorites. Denise used to do a personal podcast which was one of the first that I listened to. Her podcasts were interesting because she had a clear grasp of both the legal profession and technology. Something few lawyers can say. What amazed me was how she could get in her car and talk for an hour, while driving, and make a coherent, well though out discussion. This is something that IHA could never pull off, but then again the ability talk like this is probably what makes Ms. Howell a fine appellate lawyer.
Denise finally decided to give up the hour+ commute and go into entertainment. Allegedly, she will be hosting a regular podcast for TWIT.tv. Hopefully this starts soon.
She also has picked up a spot at zdnet as a professional blogger for a column called Lawgarithms. Good for her.
On Sunday, Denise wrote a column about RSS feeds and the implications for copyright holders. The issue at hand was “what are the copyright ramifications for publishing a feed?� While IHA hasn’t extensively followed the online discussion, based on Denise’s comments, there seems to be a reoccurring theme to theories about legal issues involving cyberspace and the internet. Everyone always wants to make the internet into something more than it is, and try and come up with new laws to address the new issues that come up. However, at the end of the day, the existing laws we have are flexible enough to handle the situations that occur in cyberspace. It just takes some creative thinking to frame the issue appropriately and draw the appropriate correlations to a factually similar situation in the bricks and mortar world. For example, look at how Intel used centuries old trespass to chattel common law to try and stop a former employee from sending bulk email to current employees (Intel lost, but it was a good attempt).
As for RSS, IHA doesn’t see why this should be one of the top unanswered legal questions on the web. 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.
I’ll stop now as my day-job is a calling.
IHA
Hi IHA,
Thanks so much for the kind comments and for engaging in this discussion. To address your point, there are some online differences that may come into play in this analysis. Just as search engines have successfully invoked fair use, implied license, and the DMCA (see http://www.eff.org/deeplinks/archives/004344.php), so ultimately might aggregators and other RSS re-users, particularly if their activities are salutary in nature (search makes the Web navigable; aggregation makes it manageable). The free/local/ad supported publication analogy came up in my comments and is the closest one I’ve seen, but it doesn’t take into account that, on the Web, copyring is involved in *any* redistribution, including the kind that would be legal in your example.
There’s an additional reason why this analogy doesn’t fit closely enough to definitively QED the problem. With the free local pubication, the publisher is delivering a limited, predetermined number of its works, via sneakernet if you will, to a limited number of destinations that it selects. The works will sneakernet themselves away from those destinations, but not far, and their numbers will still be whatever the publisher dictated. With RSS, the work is going to destinations (and perhaps onward to other destinations) that are potentially unlimited in number, potentially an unlimited number of times, as long as the feed, server, and bandwidth are all in good order — all at the behest of the rightsowner, who presumably knows this when s/he publishes the feed.
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