Yesterday, I wrote a post here about the debut of Law Ratchet, a site that aggregates legal news and blog posts. Afterwards, a reader emailed me asking a key question my post did not address — that of whether Law Ratchet is violating the copyrights of the publishers and bloggers whose stories it is picking up.
For many of the articles Law Ratchet picks up, it is republishing them in full on its own site, complete with images. For example, yesterday Orin Kerr published a post on The Volokh Conspiracy titled, Peering Through A Window Next to A Front Door Held to Be A Fourth Amendment Search. Now compare Kerr’s post as it appeared on Law Ratchet. It is there in full text — not a snippet, not a simple link.
The same was happening with my blog — my posts were appearing in full text on Law Ratchet. As a test, I changed my settings in WordPress so that my RSS feed contained only a summary of each post, not the full text. Now, only the truncated summary appears in Law Ratchet. (Here is an example in Law Ratchet.)
In some cases, however, Law Ratchet is displaying articles in a different way. For articles from certain “mainstream” news sources, Law Ratchet displays a bifurcated page. The top half of the page shows a summary of the article. The bottom half frames the original source page containing the full story. Here is an example of a story from the ABA Journal and here is one from The AmLaw Litigation Daily.
A Grey Area of the Law
So is Law Ratchet violating copyright law by republishing these stories on its own site? Is this any different from what Google Reader does? For that matter, is Google Reader (or Google News) violating copyright law?
The answer is not as straightforward as you might expect. Just recently, in The Associated Press v. Meltwater, a federal judge in New York ruled that the Meltwater media monitoring service infringed AP’s copyright by scraping news stories from the web and providing excerpts to its subscribers. The judge rejected Meltwater’s fair use defense, finding that Meltwater was simply capturing and republishing AP’s content in order to make money from it. Law Ratchet would have an even weaker fair use defense, given that it is republishing entire articles just as they were originally published elsewhere.
But another defense to copyright infringement is that the republisher had an implied license to use the content. In the case of blogs, the argument has long been made that distributing the blog’s content through an RSS feed constitutes a license to others to do what they may with the content. Eric Goldman discussed this in a post in 2005:
In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed. However, because it’s implied, I’m just not sure of the license terms. So, in theory, it could be an implied license to permit aggregators to do whatever they want.
Even though Goldman wrote that way back in 2005, the issue remains unsettled in the United States. Just a few months ago, an Israeli court ruled (also via Goldman’s blog) that a blogger, by offering an RSS feed and encouraging sharing of his posts on social media, waived his intellectual property rights. (For a great overview of U.S. law, see Kimberley Isbell’s article, The Rise of the News Aggregator: Legal Implications and Best Practices.)
Not everyone sees it that way, of course. You will find plenty of top IP lawyers who maintain that an RSS feed does not create any sort of implied license. Still, it’s worth keeping in mind that RSS stands for “really simple syndication” and that syndication is an offering of a work for publication across multiple sources.
Law Ratchet Responds
I put the question to Law Ratchet’s founders and received a reply this morning from CEO and c0-founder Derek Chau. Chau is a 2006 Harvard Law grad and he and co-founder Will Mouat were associates together at Ropes & Gray in Boston before relocating to California. Here is what he said about the copyright issue:
On the issue of copyright law, we did invest a fair amount of time researching the matter. I would hazard to guess that you are familiar with the copyright issues given your experience with media law. We carefully analyzed the issues and suffice it to say that we believe that Law Ratchet is well-positioned on the merits of the legal issues.
Will and I embarked on this venture to create a better experience for lawyers to consume and discover legal news. In doing so, our goal has been to work with content providers and to forge mutually beneficial partnerships with authors and publishers. In fact, we believe that the only way Law Ratchet will succeed in the marketplace is with their cooperation and partnership.
We are also encouraged by the experience of other news aggregators … Google Reader, Feedly, Pulse, Zite, Flipboard to name a few. In particular, Pulse and Flipboard have been very successful in creating compelling alliances with content providers. At the end of the day, the authors saw the compelling value proposition and actively sought to be featured on the news aggregators. As you may recall, CNN even went so far as to acquire Zite in 2011.
We are particularly proud that we enable users to read legal blogs that they typically wouldn’t find; we hope our platform helps support the lesser-known (but very talented) authors out there. All the feedback we’ve gotten from these authors is positive, and we’ve been asked to include even more content and sources.
Naturally, if an author or publisher asks to be removed from our service, we will do so even if that source is still available through Google Reader (or Feedly or similar services). We don’t expect that to happen frequently because authors are generally excited about being more widely read (and having a prominent link to their site), but we wanted to err on the side of caution.
Law Ratchet also has a few other options for presenting various sources that we’re happy to discuss with interested authors, and is excited about future features that allow even closer relationships with certain authors (stay tuned!).
Chau’s reply does not specifically explain why he has concluded that Law Ratchet is “well-positioned on the merits of the legal issues.” His comment that he has been working with content providers may explain why Law Ratchet treats articles from certain established news sources differently than those from blogs.
If there remains a grey area with regard to the copyright implications of RSS feeds, there is something you can do that should help protect against the wholesale copying of your posts. Do as I did above, and change your feed to include only a summary of your post, not the full text. (In WordPress, go to Settings > Reading and click the “summary” radio button next to the entry, “For each article in a feed, show …”)
However, I would add that I did hear from one publisher who indicated that Law Ratchet was publishing full text of its articles even though its RSS feed contains only summaries. If that is the case, it would suggest that Law Ratchet is scraping some of its content directly from the original source.
What do you think? Are you glad to have Law Ratchet pick up your posts? Does it drive traffic to your blog or draw it away? I’d be interested to hear your thoughts.