Read Martin Schwimmer’s post “Why I Have Asked Bloglines To Remove My Sites From Its ‘Service.'” Then read JP’s earlier posts on RSS and copyright. Let me throw out some questions, in the service of probing the issue (and not to judge or argue for any particular view).
Which of your intuitions about RSS and copyright stay the same when commercial use is added to the mix? Which change?
Let’s change the facts a little and see what happens. What if, instead of a server-side aggregator, Bloglines distributed software that aggregated client-side? Imagine it functions exactly the same, reframing Martin’s page, cutting off his contact information, and targeting advertisements based on its contents. However, the derivatives are rendered wholly on the client’s machine. Would Martin (or someone similarly situated) have reason to object? Intuitively? Legally? For the same reasons as Martin proposes in his post, or different ones?
Compare and contrast these two situations with related issues in Basic Books v. Kinkos, Sony v. Universal, UMG Recordings v. MP3.com, and Huntsman v. Soderburgh. Consider the different roles played by intermediaries and users in making infringing and non-infringing uses. Let’s assume for the moment that if a user were to make a particular derivative work himself it’d be a fair use – are there reasonable arguments that an intermediary should be able to make that fair use on behalf of the user even though the intermediary charges a fee? Does anything change if the intermediary’s action might actually promote markets for the original work?
(If not obvious: part of my intent in framing the problem this way is to take it out of the blogging context, to see how that changes our intuitions about the issues, if at all. I can imagine certain responses to Martin along the lines of “he’s a blogger – this just isn’t right” – we should treat that intuition critically).
Update: Denise has some linkage on this subject and points out the implied licensing issue. Scoble’s comment re: Newsgator mirrors the hypothetical comparison I suggest above. He also writes, “Yes, I’m fully aware of copyright law. But blogging needs a new copyright idea. When you blog you are defacto agreeing to let your content be used in ways that might not agree with strict copyright laws.” In response to someone asking why copyright for blogging should be any different, Scoble argues that “RSS is a Syndication format and the usage model existed before any of you started writing. You saw how it was being used. You decided to participate by adding RSS feeds.” Dennis Kennedy notes some of the complicated fair use issues and points out how they relate to early cases regarding framing of websites. RSS and blogging norms seem to complicate the case, at least in some people’s minds.
Update 2: Martin clarifies and expands. Particularly points 4 and 5 are relevant to the above post.
[1/17 – edited second graf; before both questions were about intuitions staying the same]