I recognize I’m sounding like a broken record, but I think that developers of blogging software — and protocol developers, too, for that matter — should work Creative Commons licenses into RSS feeds as the default.
Why? For one thing, the copyright issues related to blogging and to syndication and aggregation of blogged content are bound to get messy. Bloggers have relied upon a set of presumptions that might not be true, in terms of who can do what with what content. More important, I believe that (cc) licenses (you have 11 choices) can accurately describe what bloggers mean to do when they write and syndicate content, and that we can head off a problem — in such a way that will benefit the development of the Net as this phenomenon of writing to weblogs grows.
Consider this not-so-hypothetical fact pattern, which sounds a whole lot like a question on an Internet law professor’s final exam:
Blogger #1 posts frequently during the course of most days to his publicly accessible web site. Blogger #1 syndicates his work via an RSS feed to anyone who wishes to pick up that feed. Blogger #1 retains full copyright in his written work. Though it’s not strictly required that he do so under copyright law, Blogger #1 has made clear in various places, including the footer of each page of his blog and in the text of his RSS feeds, that he retains full (c).
Blogger #2 receives the RSS feed from Blogger #1. Blogger #2, in fact, configures a computer program to receive this RSS feed quite frequently from Blogger #1’s site over the course of several days. Blogger #2 reposts the relevant content from Blogger #1’s RSS feeds (i.e., not including XML tags in the reposting) verbatim. In fact, Blogger #2 reposts every version of every blog posting to the republication site, apparently to highlight edits made to Blogger #1’s postings over the course of each day. Blogger #2 uses color to highlight the edits that Blogger #1 has made.
Blogger #1 objects to Blogger #2’s verbatim republication of Blogger #1’s feeds.
What recourse does Blogger #1 have? Has Blogger #2 violated the copyright of Blogger #1 by copying the text verbatim? Has Blogger #2 created a derivative work of Blogger #1’s posts by highlighting the changes? Can Blogger #2 rely upon either a fair use exception (consider carefully the impact of the *entirety* of the copying in the 4-factor test) or, perhaps, an implied license to republish in the manner that he has?
There are lots of ways to avoid such a dispute. One is for everyone to get along, for no one to act obnoxiously — in which case we have little need of the “wise restraints that keep us free.” The Net could indeed be the wide-open, lawless paradise some of us once imagined, and we’d all be happy. More reasonably, we should keep at the task of embedding (cc) licenses, or alternately a statement to clarify that we mean to contribute the work to the public domain, in RSS feeds and on the pages of weblogs to make clear our intentions in sharing and syndicating our work. Or, I suppose, the blogging community should understand what’s meant when someone indeed decides that they mean to retain the copyright to something.
John Palfrey 
Where does copyright stand when the situation involved libelous and slanderous behavior? The current situation is one of watching exactly that sort of abusive behavior and tracking it, over time. Where does the law stand here? Should the police filmed beating Rodney King insist they be compensated for their likenesses being rebroadcast? This situation is fundamentally exactly the same.
How would the situation change if in fact Blogger #2 only republished those items which had been edited after first publication (the actual situation, it appears)? What is the unit of “the work” for weblogs? It’s a question I’ve argued with several blogging lawyers, to none of our satisfaction. For instance, my MT weblog with individual item archives makes each individual post available at its own URL, and (partly as a result of that) most of my posts are short-essay length. Someone who knew nothing about weblogs would probably say that each was a separate work. Blogger #1 only makes his posts available in a single page containing all of that day’s posts, and most of his posts are only one sentence. Someone who didn’t know the oft-repeated “the post is the fundamental unit of the weblog” would be *very* unlikely to say that each sentence was a separate work.
Does it affect the analysis if Blogger #1 is a public figure?
To the top point, above: is a slander or libel counterclaim ever a defense to copyright infringement? As a general matter, you’re talking about apples and oranges.
Phil raises a good point about the unit of work at stake here, which would have an impact on the fair use analysis, to be sure. My guess is that a finder of fact would have to look at what reasonably is considered the right unit that should be protected by (c), and that I, as one observer, would suggest that a blog entry is the right unit level to consider (you seem to think otherwise?). A full day’s work, which might entail say 10 posts for an active blogger, seems too big a unit; a sentence seems too short (recall also that one can’t copyright words and short phrases, though that’s at a different level of the analysis, of course). If I were counseling Blogger #2, though, I’d suggest selective choice of posts to reproduce in whole (i.e., just those that are edited at some point during the day) is a slim reed to which to cling. Copyright on the Net is pretty strong; fair use exceptions are very hard to make out in virtually any US court system at the moment and rarely win in this type of context. Every IP lawyer I know will refuse to give an opinion saying you can rely on fair use in a situation like this one.
The public figure doctrine might invoke other protections for Blogger #1, possibly. It’s unlikely to help Blogger #2. I suppose if Blogger #1 is a public figure acting as an official of the state and her/his work is a government document, then (c) wouldn’t attach. There are probably other permutations.
IANAL.
In this case, Blogger #2 is excerpting and reproducing the edited postings only in full, with highlghting to show their differences, for purposes of non-commercial commentary.
The ‘unit of work’ question is a tough call in this instance. It would be easier to decide that each posting was an individual work if they appeared on their own page, and were all longer than a single paragraph. As it is, it can be argued that the individual postings are only part of a larger work, both on the page and in the syndication feed (though they are part of different larger works. The feed will not map exactly to a single page at any time). To my mind, in this case, selecting some postings and not others qualifies as excerpting.
Also, the quotations are cited as such by Blogger #2, the work is quite transformative, doesn’t diminish the market value of Blogger #1‘s work, and serves as criticism of the copyrighted work.
Finally, the copyright assertion is being made by someone other than the copyright holder.
It seems like a pretty clear-cut instance of fair use.
Does “fixed in final form” apply here? Is something that’s in process of editing, even if the editing is done in public, as it were, fixed in final form? If not, does copyright inhere? Does the existence of copyright notices affect whether copyright inheres?
I don’t know the answer to these questions (although I believe the answer to the last is “No.”) .
To Bill Brown’s question: How is the (c) assertion being made by someone who doesn’t hold the (c)? Isn’t Blogger #1 clearly the (c) holder, at least in my hypo?
Jam’s comment is a cool one, but I’m not sure where that would end: is there no (c) on the Net just because it’s so easy to change content quickly and frequently? Just because it might be edited doesn’t make it unfinished, does it? And then once, at the end of the day or whenever it is forever done, reproduction persists, possibly every time someone accesses Blogger #2’s page. The “fixed in a final form” problem seems implausible as a means of undermining the original (c) interest here, as intriguing as the idea is.
I have had some further thoughts on this (after going back to the definitions in the statute) which I’ve posted to Jam Today. I’ve not convinced myself either way on Blogger #1’s copyright at the point when Blogger #2 allegedly infringes. The reproduction on Blogger #2’s page shouldn’t be relied on to establish Blogger #1’s copyright because it’s unauthorized.
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