December 12, 2005

posted by Daniel J. Solove

This is a complex question because blogs may be creating some type of implied license by setting up an RSS feed; and if the blog uses a Creative Commons license, that may be further granting express or implied rights. I've blogged on this dilemma at http://blog.ericgoldman.org/archives/2005/08/blog_content_ag_1.htm . Unfortunately, I didn't come up with any great solutions. Eric.

Dan> Should he ignore it? Or does it call for a response?

His IP right, his call if he wants to use it. Like Eric says in his post, even if there is an implied license in using RSS that somehow persists despite the CC no-commercial use license, it's trivial to revoke.

On the broader issue of policy, this is not about "piracy," it is really just a debate about spam in disguise. To explain, take a look at this:

If you follow the links to these sites that use Batman images, you'll find that some of these sites are probably taking some original material that may be protected by copyright and adding some commentary, etc. (just like the defendants were in the Free Republic case). Arguably this is about "piracy" too, right? But even if there may be IP problems with some of these sites, I personally think the Net may be better off with this kind of content + commentary out there (others might disagree). This is generally how copyright norms operate between bloggers -- they repost generously, but tend to add value and properly attribute.

But what if an unlicensed reposter doesn't add any value? Hypothetically, let's suppose there is a site that posts an RSS feed from somewhere else and tacks on Adsense for revenue -- that's all. Just the Adsense serving as spam that didn't exist on the original.

Like the spam problem, this isn't about creative reuse, it is about misappropriation of attention. All our Net norms may be against it, but it produces a sufficient revenue steam that creates sufficient incentives to make people violate the norms. Like spam, the answer is probably to make targeted regulations to reduce the incentives and promote technical tools that will have the same effect. And, as I said about meta tags a long time ago, I think a technical fix will have more value than a legal fix (though undoubtedly it will just switch the dynamic to a new form of norm-violation and free-riding).

The issues seem pretty clear to me in this particular case. There's an express license, and it indicates that republication is only permitted upon, among other things, sufficient attribution. A mere link does not qualify as sufficient:

"You must keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of Original Author (or pseudonym, if applicable) if supplied, and/or (ii) if the Original Author and/or Licensor designate another party or parties (e.g. a sponsor institute, publishing entity, journal) for attribution in Licensor's copyright notice, terms of service or by other reasonable means, the name of such party or parties; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., 'French translation of the Work by Original Author,' or 'Screenplay based on original Work by Original Author')."

If Rubel wants a quick fix, he could send a Section 512 takedown notice to the web host.

P.S. I just noticed the owner of "Podcast Rebroadcast" posted a rejoinder on Rubel's blog, in which he claims his sole purpose was to republish Rubel's blog in a way that would get around school filters. He claims that "The site accredited your site as the source of the post, and linked directly back to your site and its content." It's impossible to tell now whether the republished content complied with Section 4(c) of the CC license, because the Podcast Rebroadcast site is now down.

I agree with Bruce, the quickest way to handle this is either with a cease and desist letter or a 512 notice. I've found when dealing with my own plagiarism battles that those are the quickest means to deal with these matters.

If he is bothered by the reuse of his work, he has every right to shut it down and I hope that he will. While I'm all for reasonable reuse of work, I have to say that the adage of giving an inch and taking a mile seems to apply with these sploggers.

Just my experience though.