On Shyftr and copyright infringement

Over the past few days a discussion has erupted about the recently-noticed RSS feed aggregator slash social networking site called Shyftr. The gist of the discussion — which can properly be characterized as a controversy — is about how Shyftr republished entire posts from others’ RSS feeds without obtaining prior consent. Rather than try to link to all the great posts out there addressing the issue, just go to this del.icio.us page to see my collection of links on the subject.

A lot of the discussion addresses the concern of Web publishers (mainly bloggers) about where feedback should reside. Services like Shyftr and Friendfeed provide the mechanism for users to comment (and thereby engage in a conversation) within those services, without any way for the original publisher to be directly notified of that disscussion. Brian Solis, whose post about Shyftr was the first to make me aware of this issue, addresses the conundrum by observing that “the conversation has left the building.”

The other particularly unsavory bit of this Shyftr kerfuffle is the intimation that publishing entire feeds in the manner Shyftr was doing it is content theft. Tony Hung may have expressed that concern best. As an intellectual property lawyer, I read intimations of content theft as intimations of copyright infringement.

For as long as RSS has been around, or at least for as long as I’ve cared about RSS, lawyers have been speculating about where the edge of the envelope is when it comes to the manner of republication of feed content. Denise Howell in particular has artfully, and I think correctly, couched the question as one involving the doctrine of “implied license.”

One of the leading cases on implied copyright licenses is Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). The court held that the defendant horror movie producer was not an infringer when he used some footage he’d commissioned from the plaintiff special effects company, because the defendant had an implied license. But there was a real relationship between the parties — the allegedly infringed content was not merely appropriated from a source at large (like the Web). The special effects company “created a work at defendant’s request and handed it over, intending that defendant copy and distribute it.” It was that kind of situation that gave rise to an implied license. And the relation of the parties, along with their actions, was critical.

For this situation, Eric Berlin hits the nail on implied license’s coffin right on the head when he states that:

[A]n RSS feed still has elements of control. Publishers can advertise on their RSS feed for one, readers can click back to the original story to comment, and importantly publishers can track RSS feed subscribers and count those numbers against their overall “reach” in the blogosphere and on the Internet.

Those aspects underlie the intent that an average feed publisher will have when he or she puts content out there in a feed. It’s this intent that drives and defines the conduct of the publisher. Use of a full feed by another that eliminates these aspects of control is contrary to the publisher’s conduct, and in my book could hardly be defensible on an implied license basis.

But it’s a tempest in a teapot. Shyftr has announced on its blog that it is backing off from republishing full feeds. Wise move. Not all of us agree there should be an invitation to steal our content. Copyright protection, regardless of how antiquated some may want to characterize it as, provides some great peace of mind and gives a valuable means of control.

Shyftr’s change in course has probably been due in part to rumblings of DMCA takedown notices on the way. Interestingly, though, Shyftr doesn’t look like it has cared to try to put itself in the DMCA safe harbor. As of the time of this post, it does not provide any information on its site about a designated agent for receiving DMCA takedown notices. (See its Terms of Use and About pages.) Cavalier or just precarious?