More Confirmation That RSS Feeds Aren’t Just “Really Simple Stealing”–MidlevelU v. Newstex

March 7, 2021 · by · in Copyright, Licensing/Contracts

The plaintiff made the full text of its blog posts available via RSS. Newstex, an aggregator, subscribed to the RSS feed as part of its “Index” service (which it ultimately discontinued because it wasn’t profitable). The service automatically generated summaries of the full-text posts and published the summaries along with a link to the original and some bibliographic information. Customers could also click on a link to see the original hosted by Newstex through its iFrames functionality.

MidlevelU sued Newstex for copyright infringement. A jury found 43 willful copyright infringements, 27 of which qualified for statutory damages. The jury awarded $7,500 per infringement for a total damages award of $202,500. My prior blog post. Newstex appealed. The 11th Circuit affirmed.

Implied License. “Newstex failed to present substantial evidence that MidlevelU impliedly granted permission to use its copyrighted content in the way Newstex did.” MidlevelU allowed Google search crawls, but Newstex didn’t crawl MidlevelU’s site. “Implied permission to enter through a front door (web crawler) does not also imply permission to enter through a back window (RSS feed).”

As for the legal implications of offering an RSS feed, the court says “Newstex introduced no evidence that any other websites republished content received from an RSS feed, much less that the practice was customarily accepted. Nor did Newstex present evidence that MidlevelU knew about the practice and permitted it.” Still, everyone knows that RSS readers (such as Feedly, which is what I use) will index RSS feeds and display the full text of blog posts if available, and Newstex tried to take advantage of that understanding. The court responds with this baffling analogy to the offline world: “Implied permission to enter the front door to shop (read the content through an RSS reader for personal purposes) does not imply permission to enter and throw a party (sell computer-generated summaries paired with iFrames showing the full-text content).”

Fair Use.

  • Nature of Use. Newstex claimed its Index service was like a search engine, but “making copyrighted material searchable does not alone change the original purpose of the material,” so this wasn’t transformative. “A reasonable juror could have found that the iFrames obviated any need for an Index subscriber to visit MidlevelU’s website directly, so the Index superseded the use of the originals.” Newstex also made a commercial use because it sold subscriptions to its Index service.
  • Nature of the Work. “The articles present advice for midlevel healthcare providers on healthcare-and career-related issues. Some are more informational; some are more creative and speak from the author’s personal experience. At most, this factor is neutral.”
  • Amount Taken. Newstex republished the full text, and it’s possible its auto-generated summaries took too much as well.
  • Market Effect. “Although MidlevelU offered no evidence that it lost readership because of the Index, Tolbert testified that she felt that the Index was a ‘threat’ because readers might find MidlevelU’s content on the Index instead of MidlevelU’s website or think MidlevelU’s content is low quality because of the poorly constructed abstracts on the Index….Moreover, the jury could have reasonably found that because of the Index’s iFrames, the Index could serve as a market substitute for the articles and so substantially impact the market for them.”

Implications. Newstex faced an uphill battle overturning the jury’s ruling on fair use, but the court’s discussion of market effect is unsatisfying. First, many bloggers value readership, however they can get it, more than they care if that readership takes place at their blog, especially if their blog has weak monetization schemes. Second, and more importantly, there were few customers for Newstex’s Index service, so it’s not credible that the Index service was a potential marketplace substitute.

While this opinion doesn’t definitively resolve the scope of any implied license from offering a full-text RSS feed, it’s a cautionary tale for anyone who thinks they can freely recycle a blog’s content just because it offers RSS. The opinion doesn’t state why it was so valuable for Newstex to include the full-text version in its iFrames functionality when it already provided a link to the original. This ruling gives greater ammunition to the lawyers who might have advocated to shave off the full-text hosting of blog posts in the Index service while proceeding with the rest of the service.

Case citation: MidlevelU Inc v. ACI Information Group, 2021 WL 805534 (11th Cir. March 3, 2021)