RSS Hijacking: Is it Copyright Infringement?

Colette Vogele has a great posting on her blog about the ongoing situation regarding the RSS hijacking of the podcast of Erik Marcus. This is also the subject of an article at eWeek. Briefly, a third party has created a URL that links to the official RSS feed from Erik’s podcast. This URL has been spread throughout podcast directories as if it were the official link to subscribe to Erik’s show. If someone subscribes to this feed, it does deliver the podcast, provided that the third party interloper maintains the link back to the official feed. Now, this third party has refused to maintain the link to the official feed without a monetary payment. To add to the problem is that ITunes picked up the interloper’s URL as the feed for Erik’s podcast, so anyone who uses that program as their podcatcher cannot get the show. Erik reports that his traffic is now down 75%.

Colette reports that she is still analyzing the problem to see what the best legal theory is to apply. She has a great quote on the subject of how difficult it is to apply legal theories to new fact patterns, read her article for it. That’s what makes this area of the law so much fun to me, knowing that the conduct is wrong and trying to explain why.

Looking now at the general problem, and not the specific facts in Erik’s case, my take is that alleging copyright infringement should work, at least for purposes of a cease and desist letter. Under Section 106 of the Copyright Act there are six exclusive rights of the copyright owner. The most important right here is the exclusive right to distribute copies of the copyrighted work. I would argue that the hijacking of the RSS feed interferes with the distribution right sufficiently to constitute infringement. Another right, only for sound recordings, is “to perform the copyrighted work publicly by means of a digital audio transmission.” Section 101, Definitions, defines a “digital transmission” as “a transmission in whole or in part in a digital or other non-analog format.” To “transmit” means to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” Normally, this section would protect just the unauthorized playing of the copyrighted work, but since the RSS feed is the method of the digital transmission it could also constitute infringement to interfere with its normal operation.

Interestingly, although the RSS feed itself could be copyrightable by itself if it contains sufficiently original material, this method of infringement doesn’t copy the RSS feed itself. The interloper’s site just links to the existing feed which remains intact at the podcaster’s site. The interloper just acts like any other subscriber to the feed, making it difficult to detect.

There are other possible causes of action, but since this isn’t legal advice I shall not go into them here more fully. Suffice it to say it wouldn’t be my only cause of action I would allege in a complaint.

I would be curious to obtain other’s reaction to this hypothetical copyright claim.

UPDATED TO ADD: Lisa Vaas has written another article, this time from the point of view of the alleged hijacker.







3 responses to “RSS Hijacking: Is it Copyright Infringement?”

  1. […] The first known case of podcast theft has occurred. Reminiscent of early domain hijacking cases, in this case a podcaster’s feed has been hijacked. Details and some U.S. legal discussion here. […]

  2. […] In my last post on RSS Hijacking, the views there are from the point of view of the podcaster. Lisa Vaas, in a followup to her first article, has written another article for eWeek. This time, she writes about the point of view of the alleged hijacker, in this case the Podkey redirection service. […]

  3. […] My thanks to Evan Brown who asked me to be a guest on his podcast to discuss the recent controversy over RSS Hijacking. I’ve written about hijacking here and here. Also interviewed is Rick Klau, the Vice President of Business Development for Feedburner. I was fortunate to meet Rick at Blawgthink 2005. […]

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