EXCLUSIVE INTERVIEW
IP Attorney Bruce Sunstein Discusses RSS Copyright

Microsoft (Nasdaq: MSFT) recently announced it would enable RSS feeds in the next version of its operating system -- Longhorn, due out in beta next month. While use of RSS feeds is only at about 5-10 percent of Internet surfers, according to Yankee Group analyst Laura DiDio, their endorsement by Microsoft is likely to push them into broader adoption.

RSS, or really simple syndication, feeds are a means of sharing headlines and other Web content between sites or from one site to an individual computer.

The very simplicity of publishing RSS feeds also make them even more susceptible to republication, and copyright violation.

Bruce Sunstein is co-founder of Bromberg and Sunstein, a Boston law firm specializing in intellectual property where he heads the patent practice group. He spoke to TechNewsWorld about the issues facing RSS publishers and said that the case offers "an exaggerated example" of the challenges of publishing in the digital age.

TechNewsWorld: What is generally the intention of publishing an RSS feed if not to share?

Bruce Sunstein: I suppose you could make the following argument: They publish for people who intend to be consumers and who are good people. Redistributing is something altogether different. Of course, it's a perfect format for redistribution.

TNW: Give us a rundown of what's going on.

Sunstein: Copyright law until very recently had a much easier time of it. The world was analog as far as media goes until around 2000. Then we had DMCA (Digital Millennium Copyright Act), which has angered many. Why do we need that now? Why does it make a difference? Because until 2000, it was a pain in the butt to reproduce a work that was protected by copyright. For many, many years, decades, you could make a reasonable copy of a record, but you had to buy the tape and it wouldn't be [the] same quality. Today we have great photocopiers that will copy in color. Why don't I just take a copy of a book? It's a pain and it's not as good of a copy.

But suddenly now, every consumer has this digital equipment and we can reproduce content as easily as the owner of the copyright. The digital equipment has changed the leverage between the copyright owner and the consumer.

What can and can't be done with someone's copyrighted material is still being worked out. Problems did get more complicated when any consumer could be in the business of distribution.

TNW: Is there a difference between types of published content, for instance RSS feeds?

Sunstein: No, RSS is just another example of that in this context. Same law applies to everybody. The environment is different and that may be causing different behavior, but it's the same rules. People see something and it's easy to reproduce, so they do it.

TNW: So are there legal reuses of RSS feed material?

Sunstein: No. Well, the longer answer is, yeah, maybe. It gets to be possible, but a lot of people put content on the Internet and expect it to be protected by copyright. You don't need notice of copyright. You haven't since Jan. 1, 1978. If you publish without a notice, it doesn't mean stuff isn't protected. If I put my stuff on the Internet without notice, I can still sue if someone redistributes my RSS feed.

TNW: But much of this content is meant to be shared.

Sunstein: You can always get permission. There is this thought that a lot of people have that if I see this on the Net I can copy this and redistribute [it]. You can't. Of course, you can with permission or if you publish under a less restrictive license, like the Creative Commons.

TNW: What is Creative Commons and how does it work?

Sunstein: It has its roots in the open-source movement and it offers several different levels of copyright protection. You can pick the one you want to publish under.

The basic rule is you're going to be covered by copyright no matter what. The fact that you put something out and made it public means that at least the right of display is something you're willing to cede or nobody could look at anything. Creative Commons lets you decide how much more you're willing to cede. All you have to do is announce what license you're publishing under and you're covered.

Some of these rules are still vague. For instance, Google (Nasdaq: GOOG) saves pieces of Web sites for their searches so that when you search, you can find a snapshot of a page in time. Are they allowed to do that? This hasn't been litigated.

The RSS story is this: If you have an RSS feed, because there are no explicit rules, you're better off stating your rules. You can specify which license you want to publish under, or you can make up your own rules. Since you own the copyright, you're allowed to control it that way.

TNW: How much of redistribution violation do you think is ignorance?

Sunstein: I think it's a combination of factors. A lot of people who put RSS feeds out there aren't aware of what's happening to their feeds. Here's a question: How many of those feeds have notices of copyright associated with them? I bet not many. It would be nice if the owners of those feeds had policies about what they want to do.

TNW: Does it matter if RSS feed publishers don't pay attention to what's happening to their content?

Sunstein: If you sit on your rights, you've given them away. I suppose if you don't mind giving them away that's fine, but the law says you have to pay attention, and if you don't pay attention you lose your copyright. Suppose we write a song together and we put it on the Net. We let people copy it and record it and it's a great hit. We let this go on for five or six years and then we say that's enough. The courts are very practical. ... when that happens, the courts will say, "We're not interested. You weren't interested for five or six years, so why should we be?"

TNW: How do you make people understand that just because something is possible that doesn't make it right or legal? I mean, my car will go 125 miles an hour, but I shouldn't go that fast.

Sunstein: That's exactly right. Just because something can be done, doesn't mean you should do it. It was easier before because we were in the analog world and technology gave the creator an advantage. Now, the creator and reader are democratized, which is the wonderful thing about the Internet, but it also means that consumers can become dealers ... I don't think people were more ethical before, but it was harder to plagiarize and rip off. Human nature is the same as it was in the year zero, we just have better tools. RSS is a good example of the kinds of issues we have to wrestle with in the digital age. It's fundamentally a problem that consumers can be distributors. RSS just poses an exaggerated example.

TNW: What can publishers do?

Sunstein: Make the rules clear. When it comes to people using the feeds, don't assume that just because you got it on the Internet, you can do whatever you want from it.