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Tuesday, June 22, 2010

RSS Feeds and Splogs -- a legal view

Note: I am a lawyer in Arizona but nothing I say here should be taken as legal advice particularly about any specific legal issue or problem. If you need legal advice, please consult a lawyer in the jurisdiction where you live. I haven't been on TV for many years, but when I was, I was on TV as a lawyer.

In a recent post John Newmark of TransylvanianDutch raised a very interesting issue involving RSS (Really Simple Syndication) feeds and feed readers such as Roots Feed. He included a number of links to sites questioning the practice of aggregation feeds and questioning the legality. Please read his post before reading the rest of mine, then you will know what I am talking about.

The Federal District Courts have original jurisdiction in all copyright cases. This means that if you want to sue someone for a copyright violation, you have to do so in a Federal District Court not a local state or county court. This usually means that filing a copyright suit is almost always more expensive and time consuming than filing in a local court. So, I decided to check out the cases that had been filed in Federal Courts about RSS. Guess what? There are only four (4) cases in the entire court system that even mention RSS feeds.

Here are the cases:

In re Mutual Funds Inv. Litigation
Slip Copy, 2010 WL 2077972
D.Md.,2010.
May 19, 2010 (Approx. 9 pages)

In re Mutual Funds Inv. Litigation
Slip Copy, 2010 WL 2342413
D.Md.,2010.
May 19, 2010 (Approx. 10 pages)

Barclays Capital Inc. v. Theflyonthewall.com
--- F.Supp.2d ----, 2010 WL 1005160
S.D.N.Y.,2010.
March 18, 2010 (Approx. 37 pages)

Diario El Pais, S.L. v. The Nielsen Co., (US), Inc.
Not Reported in F.Supp.2d, 2008 WL 4833012
S.D.N.Y.,2008.
November 06, 2008 (Approx. 7 pages)

 Another guess what? The first two listed are the same case and the case had nothing to do with RSS. RSS was just one of the ways the class in a class action suit could be notified. Here is what the case said, "The Publication Notice will also be distributed through twenty-six Really Simple Syndication (“RSS”) feeds targeted to the Business/Finance channel, and through a national distribution of a press release issued through PR Newswire to both its US1 and Financial Markets newslines."

The next reported case,  Barclays Capital Inc. v. Theflyonthewall.com, may be of some interest to the genealogical community, at least those who worry about copyright issues. One of the holdings in that case was that plaintiffs who were alleging a hot-news misappropriation tort under New York law are required to show that the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it, thereby enabling the defendant to produce a directly competitive product for less money because it has lower costs. You can read the whole case by clicking here.

The last case also had nothing to do with RSS feeds and the mention of the topic was incidental.


Now, what does this mean? It means that so far, no one has challenged the use of RSS feeds in the manner in which some of the genealogy bloggers are complaining. At least, not to the extent of filing a Federal District Court case. Is the appropriation of blog content by aggregators legal? It might be and it might not be, but until a Court somewhere rules on a specific case, we can't really tell. 


Now, if someone out there in blogland knows about a case that talks about this issue, please let me know. There may be one somewhere that I missed by searching in WestLaw allfeds. 


Maybe after I have thought about the subject for a while, I will write a post giving my opinion.

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