With the advent of the RSS (Really Simple Syndication) feeds, copyright law got a lot trickier. Labeled “really simple stealing” by AOL’s Jason Calacanis, there is still no clear-cut legal precedent about implied consent to repurpose syndicated content, but the legal system that protects search engines may also green-light spammy content aggregators.

Are RSS Feeds Recycled Content?

Here’s the predicament:

The short answer is that the legal system hasn’t really decided for certain.

Fred von Lohmann, Senior Intellectual Property Attorney for the Electronic Frontier Foundation told WebProNews, “Frankly, until there is some case law on this or related issues, we simply can’t be sure of the answers to these questions. “As with so many things on the Internet, copyright law has yet to catch up with the realities of RSS syndication.”

But copyright holders have caught up with Google, whose News and Book Search offerings have gotten the company sued in several countries, including the U.S., France, and Belgium. U.S. courts so far have held up Google’s right to index copyrighted content.

Google says its right to offer headlines, titles, and snippets of content is supported by a standing policy to allow content owners to opt out of indexing.

From the Google Blog:

And Google does have a payment agreement with the Associated Press for the right to repurpose its content.

Aggregator splogs, however, do not offer an opt-out provision, effectively ignoring any objections from the content owner. Even this, technically, may be legal, if implied consent is present.

Eric Goldman, who teaches Cyberlaw and Intellectual Property at Santa Clara University School of Law and serves on the editorial boards of Business Law Today and the Journal of the Copyright Society of the U.S.A., confirms that it’s a tricky question.

“In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed,” wrote Goldman on his Technology and Marketing Law Blog. “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.”

But that doesn’t mean content owners are powerless to protect syndicated content. Goldman suggests that a simple disclosure near a subscription/syndication link, stating how the content may be used, might be sufficient to destroy an implied license.

Another option, Goldman says, is if in the future the Copyright Office made use of RSS by accepting feeds for automatic registration – publish a blog post, it goes straight to the office to be registered.

A registered copyright makes bloggers eligible for statutory damages and attorney’s fees while supporting a class action option if bloggers go after aggregators and scrapers collectively.

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