Blog Law

Implied license is an important concept in a lot of blog related copyright issues, although this particular one is one I hadn't even considered until now.

The opinion of a recent 11th Circuit case on the topic holds that the fact that your blog has an RSS feed does not mean that you have lost all copyright protections for it. The opinion begins:

This appeal involves a blog operator that sued a content aggregator for copyright infringement after the aggregator copied and published the blog’s content. A jury sided with the blog operator. 

The main issue for us is whether the  district court should have allowed the jury to decide whether the aggregator had an implied license to copy and publish the blog’s content. Although the district court employed a too narrow understanding of an implied license, we conclude that a jury could not have reasonably inferred that the blog impliedly granted the aggregator a license to copy and publish its content. 

The aggregator also argues that the district court erred when it instructed the jury about statutory damages, permitted the jury to consider ineligible works in awarding damages, failed to consult with the Register of Copyrights about the blog operator’s alleged fraud on her office, and denied the aggregator’s motion for judgment as a matter of law based on its defense of fair use. 

Because no reversible error occurred, we affirm.

From an opinion of the U.S. Court of Appeals for the Eleventh Circuit.

How Appealing notes other commentary on the decision:

At his “Technology & Marketing Law Blog,” Eric Goldman had a post titled “A Blog’s RSS Feed May Not Grant an Implied Copyright License — MidlevelU v. Newstex” about the federal district court’s ruling, which the Eleventh Circuit’s decision yesterday affirmed.

And in May 2020, Mitch Stoltz of the Electronic Frontier Foundation had a post titled “EFF to Appeals Court: Reverse Legal Gotchas on Ordinary Internet Activities.”