Yet another reason for (cc) licenses in RSS feeds

I recognize I’m sounding like a broken record, but I think that developers of blogging software — and protocol developers, too, for that matter — should work Creative Commons licenses into RSS feeds as the default.

Why?  For one thing, the copyright issues related to blogging and to syndication and aggregation of blogged content are bound to get messy.  Bloggers have relied upon a set of presumptions that might not be true, in terms of who can do what with what content.  More important, I believe that (cc) licenses (you have 11 choices) can accurately describe what bloggers mean to do when they write and syndicate content, and that we can head off a problem — in such a way that will benefit the development of the Net as this phenomenon of writing to weblogs grows.

Consider this not-so-hypothetical fact pattern, which sounds a whole lot like a question on an Internet law professor’s final exam:

Blogger #1 posts frequently during the course of most days to his publicly accessible web site.  Blogger #1 syndicates his work via an RSS feed to anyone who wishes to pick up that feed.  Blogger #1 retains full copyright in his written work.  Though it’s not strictly required that he do so under copyright law, Blogger #1 has made clear in various places, including the footer of each page of his blog and in the text of his RSS feeds, that he retains full (c).

Blogger #2 receives the RSS feed from Blogger #1.  Blogger #2, in fact, configures a computer program to receive this RSS feed quite frequently from Blogger #1′s site over the course of several days.  Blogger #2 reposts the relevant content from Blogger #1′s RSS feeds (i.e., not including XML tags in the reposting) verbatim.  In fact, Blogger #2 reposts every version of every blog posting to the republication site, apparently to highlight edits made to Blogger #1′s postings over the course of each day.  Blogger #2 uses color to highlight the edits that Blogger #1 has made.

Blogger #1 objects to Blogger #2′s verbatim republication of Blogger #1′s feeds.  

What recourse does Blogger #1 have?  Has Blogger #2 violated the copyright of Blogger #1 by copying the text verbatim?  Has Blogger #2 created a derivative work of Blogger #1′s posts by highlighting the changes?  Can Blogger #2 rely upon either a fair use exception (consider carefully the impact of the *entirety* of the copying in the 4-factor test) or, perhaps, an implied license to republish in the manner that he has?

There are lots of ways to avoid such a dispute.  One is for everyone to get along, for no one to act obnoxiously — in which case we have little need of the “wise restraints that keep us free.”  The Net could indeed be the wide-open, lawless paradise some of us once imagined, and we’d all be happy. More reasonably, we should keep at the task of embedding (cc) licenses, or alternately a statement to clarify that we mean to contribute the work to the public domain, in RSS feeds and on the pages of weblogs to make clear our intentions in sharing and syndicating our work.  Or, I suppose, the blogging community should understand what’s meant when someone indeed decides that they mean to retain the copyright to something.