IP Law Daily Content aggregator did not have implied license to copy and publish blog content
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Thursday, March 4, 2021

Content aggregator did not have implied license to copy and publish blog content

By Sheri A. Wattles-Miller, J.D.

The aggregator did not present evidence that would have allowed a jury to reasonably infer that the blog granted an implied license to copy and publish its content.

A jury verdict awarding statutory damages to a blog operator for a content aggregator's copyright infringement of 27 articles was upheld by the federal appellate court in Atlanta, because the lower court did not err when, rather than allowing the jury to decide the issue, it determined that the blog did not impliedly grant the aggregator a license to copy and publish its content. In addition, no reversible error occurred in regard to the aggregator's claims that the lower court erred in its jury instructions about statutory 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 fair use defense (MidlevelU Inc. v. ACI Information Group, March 3, 2021, Pryor, W.).

Background. The blog operator had a website that provided resources for midlevel healthcare providers, such as nurse practitioners and physician assistants. As part of its services, it published a free blog designed to attract potential customers to its revenue-generating resources. The articles on the blog were distributed in full text via RSS feed, instead of only headlines and summaries of recent articles. The website and the RSS feed contained a copyright notice, but the individual articles did not.

The aggregator primarily sold collections of licensed news content to companies. Its Scholarly Blog Index was a curated index of abstracts and full-text articles from academic blogs. To create the index, the aggregator used material from licensed sources, but it also subscribed to RSS feeds for blogs for which it did not have a license agreement to use full-text content.

When the blog operator discovered the content from her blog online, she registered the 50 most recent blog articles for copyright protection with the United States Copyright Office. She then emailed a cease-and-desist letter to the aggregator demanding that the content immediately be removed from the aggregator's index. Later she found that although the content had been removed from the index, some of the content was still available online and mistakenly attributed to the aggregator.

Implied-license defense. The aggregator pointed to an industry practice where search engines using web crawlers construed permission to use material in a limited way and for a particular purpose. However, the court cautioned, a party is not allowed to infer permission beyond the customary scope of the license. Comparing an online entity to a brick-and-mortar business, a party may not enter a business through a back window instead of a front door or for a nonbusiness purpose like throwing a party. In this case, although the blog impliedly granted permission for a web crawler to copy any of its pages, the aggregator did not present evidence that it had used a web crawler to collect data. Instead, it collected data by scanning the RSS feed. It also did not show that other websites republished content received from an RSS feed, that the practice was an accepted industry practice, or that the blog operator knew about the practice and permitted it. From the evidence presented, the jury could not have inferred that the blog operator granted an implied license to copy and publish content from the blog. Thus, the lower court did not err by deciding as a matter of law that the implied-license defense was not applicable in this case.

Fair use. The aggregator's use of the copyrighted articles in the index was not fair use as a matter of law, the court concluded. The jury could have reasonably found that the aggregator did not establish its fair use defense because the four factors considered to determine fair use were all debatable. First, although the index had some features of a search engine, it was not a transformative use. The blog's purpose was to provide information in the form of the full-text articles, and, since the aggregator also provided full-text content the purpose of the material had not changed. Moreover, the purpose of the index was commercial, regardless of the fact that the blog provided the articles at no cost. The relevant consideration here was that the aggregator’s use of the material was commercial, not whether the blog was commercial.

Second, the aggregator's argument that the articles were factual also failed because the articles were not strictly factual. The articles provided advice. Some of the articles were more informational, some more creative, and some spoke from the author's personal experience. Also weighing against a finding of fair use was the fact that the aggregator used more content from the blog than was necessary for the purpose and character of the index. In regard to the last factor, whether the aggregator’s use of the article affected the market for or the potential value of the work, the fact that the blog continued to offer its content for free was not dispositive. The blog operator sent a cease-and-desist letter to stop the aggregator's use of the articles. She expressed her concern that the readers might find the content on the index instead of on the blog or think that the quality of the blog content was low because of the poorly constructed abstracts provided by the index. Thus, the question of fair use was properly sent to the jury.

Calculation of statutory damages. The lower court allowed the jury to consider evidence about blog articles that appeared in the index but were not registered with the Copyright Office when determining statutory damages. The lower court gave the jury a standard pattern instruction, which listed several factors to consider in regard to awarding statutory damages. The evidence of the unregistered works was relevant to determining damages, the appellate court found, because it suggested the willfulness of the infringement and the need to deter further violations. The completed verdict form confirmed that the jury understood that it could award damages only for registered works, and the amount awarded was reasonable and within the available range for infringement.

This case is No. 20-10856.

Attorneys: Mark Bell (Waller Lansden Dortch & Davis, LLP) and Allison Sinclair Lovelady (Shullman Fugate, PLLC) for MidlevelU LLC. Alex Louis Braunstein (Fox Rothschild, LLP) for ACI Information Group.

Companies: MidlevelU LLC; ACI Information Group

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