Kevin O’Keefe recently posted a thought-provoking piece on the Law on using others’ RSS feeds, garnered from an article at EContent: RSS: Use, Lose, or Abuse?.

The strict position (in US law, but little different here), as stated by Peter Strand, partner of the US law firm Holland & Knight, is that:

In general, the content of RSS feeds, including the headline and the article or story, is protected by copyright, and retransmission, distribution, or other uses without permission is copyright infringement. Headlines, like all short phrases, receive limited protection and can only be protected if the headline is sufficiently original and not a mere statement of facts.

In the reformist camp, Lawrence Lessig argues that “in a digital age, copying is as natural as breathing” and that using a web browser – and indeed any digital reader – every page view is technically a copy, regulated by copyright law. But this is a situation which was unintended and is totally inefficient. See this Guardian piece for a quick summary of his position; his book Free Culture for the detail.

Leaving aside the technicality of the page view, the reality is that not only rogues are copyists, but also some of the biggest names on the web. Every web page that Google (or Yahoo or Technorati or any other search engine) caches is a copy; every headline and excerpt they publish is copied. But who complains? Well, no-one: we all like the “Google juice”.

Is an RSS feed any different to a web page? The eContent article quotes Fred Meeker of Banner & Witcoff:

Since most news feeds are meant to be used and received by users, there is an argument that a copyright owner who creates an RSS feed has granted a non-exclusive license, either expressly or by implied conduct, that the source be freely distributed and/or redistributed [my emphasis]. Consent to use the news feed may be manifest via either silence or lack of objection.

I beg to differ. There is a distinction between access and re-use. I may be happy for anyone and everyone to access my feed, but I wouldn’t be happy if they felt free to treat it as their own (Kevin’s beef).

Many feed publishers do explicitly set out terms and conditions. The problem is, feedsters probably won’t ever see them (as there’s no link to them in the feed itself), or if they do find a link, they won’t read the small print.

Google RSS feeds terms conditions and you’ll find the small print the major publishers set out. The Times wants to deny you, without their permission, doing anything other than access its feeds on your “electronic device”, whereas the BBC and others are happy for you to republish provided you acknowledge with a link. So, I’d say, if you do want to protect your position, you’ll need to put your terms and conditions right upfront – and this is not possible with a standard blog service feed.

Any UK Lessigs out there care to comment?