Anne Walk, has a recent blog entry ‘Who Owns a Feed?‘ giving a short history of the conflicts surrounding splogs and, in particular, the nascent trend of creating directories of video feeds. Her focus in the article is on Network2 a video directory site that provides links to video feeds and other services such as content rating and recommendations by users. The question is whether these sites that create libraries of feeds, linking to the creative content of others, are providing a service and adding value or are taking advantage.

Splogs, in this case, are defined by Mark Cuban as a “blog whose creator doesn’t add any written value.” although others have defined them as, “Splogs are blogs where the articles are fake” but it is not fake content that we are considering here. Coban also expresses his view of the value of these splogs, “I’m sure some might argue that packaging data, such as news feeds or the blog posts of others is added value. I don’t think it is.”

Walk poses these questions:

“Either way, the question is really one about RSS. Is content offered on your site via RSS “free” for the taking by other sites? Any feed can be distributed by any site. What are the legal ramifications? If you offer your content in RSS form, are copyright issues mitigated?”

and, “Who, if anyone, owns a feed?”

First, a few observations:

• Making the content available at an Internet location does not mean that the rights holder is giving up their copyright to the work even if it is generally available for viewing. It is there for viewing, not for copying and secondary distribution, unless the rights holder says this is the case (e.g. Creative Commons license)
• Traditionally in the analogue world information about the location of content (the location of a book in a library say) was not a copyright issue. Copying the book was an issue, information on its location was not.
• In a simple case the RSS system just provides a convenient means for someone to view (render) the content once they know its address. No copyright rules are broken assuming that the rights holder has agreed to make the content available for public viewing.
• Also, making a directory list of addresses on a web page with instructions on how to copy the address to your own feed reader to view the content does not appear to break copyright rules either. If these addresses are categorised or selected for quality in some way the web directory could be viewed as providing a service.
• However, if the directory page actually takes copies of the original content and redistributes this content when the customer selects the address this is a different matter. This in my view is definitely copyright infringement unless, of course, the rights holder had given her permission.

Feed Components:

Next, we need to define three components of this system of ‘distribution’; namely, the creative content itself (the digital words, music, or video), the address (URL) of this content, and the RSS protocol:

1. The content is a file containing the creative work and usually this content is protected by the rules of copyright. The author or right holder can choose how and who can distribute it until the copyright term is up and the work passes into the public domain.
2. Immediately the content is made available on the Internet it has a location in digital space and this location is addressed by an universal resource locator (URL); a portable link to the content.
3. The RSS system and protocol provides a standard means to render the content to anyone who knows the address URL.

It is the combination of the content, the RSS protocol, the location address, and the RSS rendering software that makes up the feed.

The complication:

Some of these feed directories referred to by by Anne Walk don’t host or hold a copy of the copyrighted content itself, thus avoiding direct copyright infringement, however they post more than just an address link to the content and they become an active link in the RSS feed rendering system. The consumer views the content streamed directly from the original site location but it is often rendered alongside additional content originating from the directory site. This additional content could be advertising that is earning revenue for the directory site and none of this revenue necessarily gets passed on to the original content owner. This is the issue.

I would say that this activity was non-infringing because the consumer can always take the address and view the content on their feed reader of choice. In addition some consumers will search out the original to see what else is available from the source of the creativity. In my view any gain by the directory site will be balanced (always an important term when discussing copyright) against increased numbers of consumers going to the original site.

A further complication is that some content is made available under licenses, such as Creative Commons non-commercial license, that specifically state that no commercial use of the content is allowed. However, I still think the balance argument above holds because the content is still not being copied by the directory site.

So to answer Anne Walk’s questions:

• Is content offered on your site via RSS “free” for the taking by other sites? – The content is not free for the taking but address to this content can be posted and any RSS system can stream the content even if it does add other content and advertising.
• Any feed can be distributed by any site. – Any rendering system can stream any feed.
• What are the legal ramifications? – None in my view, copyright does not change or need to change, although courts might take a different view.
• If you offer your content in RSS form, are copyright issues mitigated? – Content in RSS form has no less copyright protection.

Who, if anyone, owns a feed? – Many people and hence no one person.

Many people own different parts of the feed:

• The author has rights to the original content.
• Telecom companies own the transmission lines.
• Directory sites own their pages (structure, rating systems, advertising revenue.)
• Rendering software creators own their viewing products.
• Consumers own any display equipment and rendering software they have purchased.

What is required is clear rules and understanding so that no one takes control / ownership of a part of the system that does not belong to them. Maybe this is the challenge for P2P; to provide a fair, balanced, system where everyone can contribute, have their contribution recognized, have others share access to this contribution, but no third party can claim another’s contribution as their own.

Nicholas