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Thursday, June 14, 2012
by Rebecca E. Hoffman
Germany's highest court ruled March 27 that RSS—"really simple syndication"—feeds on websites do not subject their operators to copyright infringement liability. In this ruling (Case Az: VI ZR 144/11), which became public on May 30, the court found that unless a website operator adopted the content as its own by editing the text, or making it unclear whence the content originates, the operator has no obligation to police an automatically-published news stream for infringing material.
This decision has the flavor of U.S. law; specifically, the Communications Decency Act of 1996, 47 U.S.C. §230, which shields a provider of interactive computer services from liability for publishing material from a third-party content provider. If I have a website that permits others to post comments, I am not liable for the content generated therefrom unless I make that content my own by manipulating it somehow.
A federal court went as far as to rule that a website owner's encouragement of tabloidesque gossip, and addition of his own obnoxious comments to other's posts about people, did not subject the owner to liability for his site users' defamation or invasion of privacy. S.C. v. Dirty World LLC, No. 11-CV-00392 (W.D. Mo. Mar. 12, 2012) (but see Jones v. Dirty World Entertainment Recordings LLC, 40 Med. L. Rptr. 1153 (E.D. Ky. 2012), which came to the opposite conclusion).
From the purely common-sense, computer-user point of view, the German high court decision is eminently logical. RSS feeds are generally an auxiliary piece of a page you might be viewing, relegated to the side of your screen. Although you can clearly see them and access them, you would not be likely to believe that the site operator had control over that content, was involved in creating that content, or could be bothered to check each and every item to which the feeds link, every time they are—automatically!—updated.
It was a different story on Sept. 3, 2010, when a court in Hamburg entered an injunction against YouTube, requiring the service to demand proof of the necessary rights from users that want to download video material on the website in the future. Then, on April 20 of this year, a Hamburg court ruled that YouTube would be liable for infringing content after receiving information about infringing videos on its site, unless it immediately took steps to block the content it was warned about.
Because YouTube's raison d'être is sharing videos, it seems to me that none of this infringing content can be deemed a side-screen extra. RSS feeds are borrowing space from the main site, having their own relatively quiet existence, automatically refreshing themselves behind the scenes. The high court noted that the tabloid feed the plaintiff complained of was clearly labeled with its source, and I think this helps to underscore the RSS feeds' "otherness."
Of course, it remains to be seen whether removing such labels, moving feeds to center stage, or otherwise making them appear to be part of the main website would change the outcome, if copyrighted content is snatched up by the feed in question.
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