There’s been a flurry of posts and comments on a topic I’ve long been
watching, which is the status of copyright and syndication
technologies.  It’s arisen this time in the context of a project
that I’m involved with outside of my Harvard work, called Top10 Sources
(see my disclosures
for more; it’s important to note that what you read below is
potentially colored by my obvious interests here, though I believe I’ve
been 100% consistent on the merits of this argument since I became
involved in the discussion).  

The issue, raised by a few respected members of the blogosphere, Mike Rundle, Om Malik and Adam Green among others, is whether Top10 Sources
is doing something that violates copyright or, separately, is doing
something that is outside of “the bounds of accepted aggregator
behavior” (perhaps related to the furor over splogs).  My view is
that the site is doing neither.  I believe also that this issue is
a very important one to vet fully, as a community, because this debate is
going to recur and recur until we sort it out.

What Top10 Sources does is to introduce readers who
ordinarily don’t spend all their time reading blogs into the
medium.  The idea is to offer a directory of reading lists,
available as web pages and as OPML files, as well as a quick synopsis
of what each of the chosen sites is saying.  Top10 Sources is
meant to be helpful to the RSS-offering community by directing readers
to great content, to get people to subscribe to your feeds, to get
people clicking through to blogs.  The Top10 Sources editorial
group also ends up learning about communities built around ideas. 
(Soon, Top10 Sources will enable anyone to create their own, competing
Top10 lists and upload them to the site, which will add another
dimension to the analysis below.)

On the copyright matter: what Top10 Sources does is instructive to
whether it’s lawful. 
First, an editor, as part of an editorial team chooses a topic, spends
a LOT of time in the community of people writing about this topic,
consults some technical metrics for the sources, and chooses 10 online
sources (defined simply as offering a feed syndicated using some flavor
of RSS) that cover that topic.  The editors periodically repeat
this process, taking one source off the list when a voice fades or
stops covering the same topic, and adding a new voice as it emerges as
important and topical.  The point is to create a human-edited
Reading List by topic, and to contribute those sources into a
human-created, limited search engine.  

As the editor compiles the site, the editor sends out an e-mail to the
person who appears to be responsible for the site, or, sometimes, posts
a comment to say that the site has been chosen.  The site renders
a list of those sites offering the feeds as directlinks to the
page.  The site also subscribes to those feeds and renders them
all together on a single page.  It is this latter activity that I
take to be the concern.  

The issue raised here is whether it is a copyright violation to render
these syndicated feeds in this way.  As a matter of copyright law,
I contend that it is not.  The strong form of the pro-copyright
argument runs like this: the creator of the RSS feed retains,
automatically, all copyrights in the content in the feed and retains
all rights in its republication, use as a derivative work, and so
forth.  Given that those rights have been retained fully by the
creator of the site, the argument goes, it is unlawful for someone —
presumably in a commercial context — to republish that copyrighted
context without license to do so.  This is the Web 2.0 variant of
the argument that is litigated frequently in the context of web-based
content, with plaintiffs like the RIAA and the MPAA (in the p2p
context), the publishers (like McGraw-Hill, or Perfect 10) who are
suing Google, and the like.  

Though I don’t believe this to be the end of the story, to be fully
responsive to this argument, Top10 Sources offers to remove any feed
chosen as a top source immediately.  So far, out of the 1,500+
sources chosen to be included in one of the site’s recommended
“Reading Lists,” only two sites have asked to be removed, both owned by
the same copyright holder.  (Out of deference to them, I won’t
list them here, though the publisher is well-known for his stance on
this topic, which I respect.)  So, as an open invitation, for
anyone included in one of those lists who wishes to be taken out, just
write to terms of service, in the footer of every page, which includes a section on Copyright.  

Why this is not the end of the story is that there are several other
factors to consider.  One is a defense of fair use, which is a
four-factor test that excuses some activity that would otherwise be
unlawful.  Another is the concept of implied license: why, after
all, would someone in fact offer an RSS feed if they did not want to be
included in aggregators?  As an empirical matter, the fact that
far fewer than 1% of those that Top10 Sources has included in
aggregators in fact have complained about inclusion suggests a norm
around what people are expecting when they decide to syndicate their
content.  As a broader sample size, consider all of the
aggregators, whether public or private in the market, which now number
in the hundreds, and the fact that we have not yet had a train wreck
around the presentation of content in these web pages.  Another is
the fact that many people have written in, asking to be added to the
aggregators.

This is so because, fundamentally, RSS is ads.  As Dave Winer has written, “RSS itself is an advertising medium, if you use it correctly.”    Or, put another way
by Mitch Ratcliffe, “RSS is not content, it’s a
channel.”    The point of many public aggregators is a
place to run these ads, or a TV Guide to these new channels.  Some
people also embed ads in their feeds, presumably so that these ads will
run other places and be seen or clicked through.  Another way to put it: “People come back to places that send them away.”  (Recall what happened to the AOL walled-garden model.)

If a publisher of RSS feeds thinks of it differently, that publisher
has options.  First, the publisher can and should put a license in
the feed that says what they want people to do or not to do with their
feeds.  Creative Commons licenses, as I’ve argued on this blog,
are the way to
go — to embed them into the RSS feeds when they go out, with clear
instructions for your intent.  If you want people to run your feed
in private aggregators,
but not in public aggregators that are for-profit, to re-offer your
content just as you’ve offered it, and to attibute authorship to you,
why not add to your feed a BY-NC-SA
license?   Second,
the publisher of the source, as some have done, can make clear on their
blogs or by
writing to those who aggregate or allow others to aggregate their
content not to do so, pursuant, for instance, to the DMCA 512
procedures.  If an aggregator does not abide your wishes, then the
publisher can seek to assert a copyright complaint via the courts or
otherwise.  But to switch the presumption, somehow, back to a
strong form of the copyright argument would do far more harm than good.

I’ve been worried about this issue since early in 2003.   
Is history repeating itself?  Is the blogosphere arguing itself
right into a trainwreck of the sort that has played out over music and
movies?  Consider the world that A (prominent) VC envisions, here  and here,
wherein content is micro-chunked and syndicated.  This world
cannot emerge if every plausible copyright claim is asserted and
litigated.  Is it a “permission culture,” as Lawrence Lessig has
argued, that we want to head for, where every use of syndicated content
must be pre-approved?

OK, so maybe you don’t like the micro-chunked and syndicated version of
the future.  Even without that version of the future, the rights
in syndicated content should be clarified.  There’s no doubt that
common practice is to share the content that you are syndicating for a
wide variety of uses.  That’s the default that has emerged. 
Simple, clear, online licenses should demark those feeds that are not
meant to be consumed broadly in such a fashion, before the train-wreck
hits.

Back to Top10 Sources, I expect to take up this issue again with the
management team.  I don’t think there’s anything being
done wrong from the perspective of the law.  But we should take up
for discussion some of the
ethical issues that Mike Rundle and Om Malik raise and suggestions that Adam Green
makes about how much of a given feed that the
site republishes — maybe a truncated version of the feeds is the right
thing to render.  The point is not to “steal” someone’s content,
but rather to direct readers to that person’s content after giving a
snippet of it.  Perhaps the right answer is to limit how much of a
feed’s offering is republished in the aggregator.

The broader issue of RSS and copyright remains.  The community is
speaking, to large extent, by creating a norm around syndication and
aggregation which is very important.  It would be a great shame if
the terrific changes being wrought by online publication, syndication,
and aggregation were to be brought down by an aggressive (and in my
view, wrong) reading of the world’s copyright laws.  As my friend
and colleague Jonathan Zittrain might say, the Internet and its
communities have a terrific way of “self-healing.”  This topic is
a great one for the Internet community to solve on its own before it
becomes a (self-)destructive fight.

(Addendum: Adam Green responds, with helpful annotation.  For the record, Adam, you were wildly overqualified for that Extension School class.  It was no doubt the right decision to have dropped.)