In a ruling handed down yesterday, an Israeli court decided that posting content from RSS feeds publicly on another site is not a copyright infringement.
The decision stems from a case that pitted Tomer Ofaldorf, a webmaster, against News1, an Israeli news agency. News1 reportedly grabbed the content from Ofaldorf’s feed and published it on their site. When Ofaldorf complained, the feed content was removed but Ofaldorf opted to sue regardless and the case went before the court.
In his ruling, Petah Tikva Magistrate’s Court Judge Oshrit Rothopf ruled that Ofaldorf, by posting his content in an RSS feed, granted a license for News1 to use the content. Though the judge didn’t rule all RSS scraping was legal, since News1 both attributed the use of the feed and removed the content promptly when asked, he ruled it was not an infringement.
On the subject of RSS scraping, there is very little precedent, both in the U.S. and elsewhere. The handful of legal cases that have arisen have been settled without a clear court ruling. This was the case with the Gatehouse Media vs. The New York Times case, the most notable case in the U.S.
So should bloggers be worried about this? Will this lead to an explosion of RSS scraping? What should webmasters be doing to address this, if anything?
†hese are tough questions with no easy answers, especially at this early stage, but it’s worth trying to answer them if we can.
What the Ruling Says
In the court case, both sides brought copyright experts to talk about RSS feeds and RSS scraping.
Ofaldorf’s expert, Gad Oppenheimer, made the argument that the purpose of RSS was to maximize distribution and eace of receipt of content but that there was nothing particularly special about a feed that waved copyright. News1′s expert, Dr. Yuval Dror, argued that the inventors of the RSS format were concerned with free distribution and not copyright considerations. According to Dror, a full RSS feed was a sign that the creator wanted to maximize exposure.
The court favored Dror’s interpretation and ruled that Ofaldorf indicated his intent to have his content distributed broadly without permission, providing something similar to what U.S. courts would call an “implied license”. However, when Ofaldorf clearly stated his intent by contacting News1, the implied license was overwritten and News1 was obligated to remove the content quickly, which they did.
The court also ruled that the fact News1 attributed every post clearly indicated that it was operating in good faith and that, without such attribution, News1 was unlikely to prevail.
Still, there’s likely to be a great deal of concern that the scraping and republishing of a full RSS feed can be considered non-infringing. Many are rightfully worried what the impact of this ruling will be and it’s a question well worth asking.
The Potential Impact
It’s unclear what exactly the impact of this ruling will be. Other nations, which can have very different laws and regulations, have no obligation to follow Israel’s lead on this issue.
So, from a case law standpoint, the ruling means little except for sites and companies in Israel operating totally under Israeli jurisdiction. Of course, that could change if this ruling is overturned on appeal.
To further complicate international applications, in the U.S., there are other laws that deal with RSS scraping (and scraping in general) that have nothing to do with copyright. These could provide significant hurdles in making RSS scraping legal here and in other countries.
From a more practical standpoint, the ruling isn’t likely to have any impact on spammers and other current scrapers. Those engaged in the practice have shown that they don’t care about the law so the legality of it in one country isn’t going to have a sharp impact one way or another.
The real concern is that legitimate actors may get involved. Organizations like News1 may start scraping RSS content and republishing it more broadly. While such publications, to a content creator, may mean reaching a great new audience, it raises serious search engine optimization (SEO) concerns as large, powerful sites will be hosting duplicate content.
Those worries are abated some by the attribution requirement. Though the reports on the ruling are murky, it seems logical any appropriate attribution would come with a link to the source. That would, theoretically, identify the original site as being the primary source. However, there’s both good and bad that comes from larger sites scraping your content, especially if they don’t help you grow your readership in a significant way.
But even if the organization isn’t as powerful as News1, for example, a new startup, there are serious concerns about SEO, fractured audience and more.
Still, it’s unlikely that companies outside of Israel will take this ruling as a green light. With different laws and different views in other countries, the issue is no more settled in anywhere but Israel.
What Should Webmasters Do?
As I said in June of 2012, it’s time to rethink the use of partial feeds. The Internet has changed from when RSS was at its peak in the mid-2000s and truncated feeds are better tolerated as people have largely moved from reading sites via RSS readers to following them on Facebook and Twitter.
So, if you’re worried about your feed being scraped, truncating your feed is the first step. Though feed expanders do exist, they are still mostly rare and any such use of your content goes well beyond any possible implied license.
If that isn’t a good option, I encourage others to add an actual license to their site and feed. This can be a Creative Commons license or simply a short line added to the feed that it is not intended for personal use and not redistribution. Any use of your content outside of that license would most likely be an infringement (unless it is a fair use) as the express license trumps any implied license.
Beyond those two things, there really isn’t much more to do. RSS feeds still play a vital part of the Web, mostly for distribution via social media, and getting rid of it altogether is an overreaction.
In short, it’s a good time to evaluate your RSS strategy not so much because of the ruling itself but because so many people either haven’t thought about it at all or devised their approach at a very different time. The ruling is just one thing that has changed.
To be clear, I disagree sharply with this ruling. I feel that the focus on the theoretically applications devised when RSS was developed versus how it is actually used by most sites was a poor judgment by the court. RSS has never widely been used in the way the court said it is intended and I sense few webmasters have such intentions for their work.
Still, I don’t feel that there will be widespread practical implications of it. The ruling only applies to one country and legal experts in the U.S. seem to agree a similar judgment is unlikely here.
For me though, content reuse has always been about symbiosis. More than a legal problem, I’ve found RSS scraping to be an ethical one, where one site seeks to reap the benefits of another’s work, even possibly damaging the original author’s SEO, without returning any benefit. This is why using attributed and truncated scraped posts, as most sites do, is a a better approach. Such reuse does less harm to the original site and provides the content’s creator creator with more benefit.
Still, with the changes that the Internet has seen in the last ten years or so, it’s worth taking a look at the role RSS has for you and your content. It may be time to get serious about switching to partial feeds or affixing a license to them. They will help you gain legal certainty over your content and deal with any issues that may arise.
Given that few will likely even notice the change, it’s like a good one to make.