Do I have permission to use the content I find on any RSS feed on my web site? This question is being asked frequently. There are two approaches we can take to answer this question; what is the search engines answer and how would the Digital Millennium Copyright Act (DMCA) be interpreted?

Search engines may deem any content from an RSS feed duplicate content if that is the only content on your page, and thus you may never see the page indexed in the engine. On the other hand, search engines may see the content as simply complementary to the vast majority of other content on your page and not penalize you in any way, other than ignoring the keyword density the feed may add to your overall content. A search engine may also look at the RSS feed in the same way a normal user would (which is how Google, Yahoo and MSN want it) and see the RSS content as new content on your web site every day, where you page is frequently updated and give you more spider visits.

The legal view is quite a bit more complicated. There are cases that fall on both sides of the coin. That is, some courts have held the use of RSS feeds to be fair use, while others have claimed this to be copyright infringement if the proper credit is not displayed in an open and notorious manor. So what is the legal standard to use?

One theory is the original creator of the content did not grant implied consent to repurpose that material by republishing it on a blog or Website, unless proper credit and a link is provided back to the original source of the content. Under the DMCA, in order for any content to be considered fair use, there are a number of elements a court will look at. One of the most significant is whether the use of the creative work is intended as a means to generate a revenue stream in and of itself? If all you have is a bunch of titles, and those titles serve no other purpose then to generate search traffic to serve Adsense or as a part of the Yahoo content network, then the fair use doctrine is likely not an option and copyright infringement is a strong possibility. It should be noted that intentional copyright infringement can result in a damage award of up to $150,000 without proving $1 in actual damages.

Though there is no specific right or wrong answer, I would argue that anyone who posts their content and proactively creates an RSS feed of the content has the intention of syndicating their content throughout the Internet. Such an intention would grant an implied license to the content in an RSS feed, and allow anyone to use that feed as they see fit. However, that does not mean the creator of the work has waived their right to claim the work as their own, and to prevent any other person either natural or business entity form doing the same. One who creates the content and then an XML RSS feed however; retain certain exclusive rights by including a disclaimer in the feed, as well as on the web site, stating how the content may be used. Such a disclaimer could not is not guaranteed to obliterate an implied license.

The bottom line is that until the U.S. copyright Office accepts RSS feeds as original creative works, and then it will be very difficult to come down with any one definite answer. The best advise for now is follow any guidelines the author requests, let the author know you are using his or her feed and where the feed is, as well as provide a link back to the original web site where the content came from. Most authors, will be happy to let you use their work, and will welcome the inbound link.

This article was written by Michael A. Goldstein, Attorney at Law for Rock Coast Media, a Boston area search marketing firm. Attorney Goldstein is licensed in Massachusetts and not any other jurisdiction. In addition, Attorney Goldstein is not a member of the United States Patent Bar. As such, this article is not to be taken as legal advice in any shape, manor, capacity or form. Should you require a legal consultation, you should seek the advice of an intellectual property attorney in your state.