European bloggers need US law advice

Basically, stop talking to them and go with your instincts. (Not their ISP but their host.)

Find out their host, use DomainTools.com

Contact their host and file a DMCA complaint against them.

Also, if they have any advertising on the site, file a DMCA complaint with Google Adsense or Adbrite or Yahoo or whatever they're using.

It's not fair use to take all copyrighted content from a site and republish it.

First off, I'm sorry about the delay in getting back in touch, for some reason my RSS reader did not notify me of the new posts so I just saw this a few moments ago.

I'll go over the issues one at a time.

First, regarding the idea of "fair use". It is unlikely that any such scraping would be protected under fair use. It is impossible to say since that is a defense that would be claimed in court and would be decided on by a judge/jury, but the odds of that working are extremely slim.

The other issue, which was not raised directly, is one of an implied license. The idea is that, by putting out an RSS feed, you may be granting sites such as this an implied license to scrape.

There is actually a pretty hot debate on that topic though most attorneys in the states feel that an RSS feed does not give one an implied license to republish. That being said, even if it does, an implied license is trumped by an actual one so, by asking them to stop, you've provided an actual license and made your intended use clear, they should have stopped.

Your instincts here are good. File a takedown notice with their host and/or the search engines or ad networks. The strategy will depend on the site. If you want, you can email me at jonathan at plagiarismtoday dot com and send me the link involved and I'll help you find the host as well as devise a strategy for handling.

All in all, I don't think there is much of a chance of a successful fair use argument given the nature of the law here in the U.S. and any implied license argument should be out the window now that you made your intentions clear.

It is time to take action by contacting their host and getting them shut down.

I am here to help if there is anything that I can do!

Jonathan Bailey - plagiarismtoday.com

Thanks Cybele and Jonathan! I meant host rather than "ISP", of course... anger tends to frazzle my brain.

I've found who their host is through one of the links you've provided elsewhere on the site, so will be filing the take-down notices with them later today.

We've used the CopyFeed plugin for WordPress which states in a footer on each feed post that the feed is for personal use only and that if it is republished on any other site, that site is in breach of our copyright. I was hoping that that would get around any possible question of implied license?

Yep, if there is a feed footer saying not for publication, that would trump any implied license. At least as I understand it. However, if you're using Copyfeed, why not just ban the site involved? That would at least prevent future scraping while you handle this issue.

Jonathan Bailey - plagiarismtoday.com

I'm just wondering how long this is supposed to take? I sent a DMCA take-down notice to theplanet.com (their hosts) on Monday; it is now Saturday and the posts are still there, plus all the new content that we have posted subsequently. I have had no response that I know of from the hosts. I'm guessing if he refuses to remove the content, and the hosts refuse to remove the content, I have no options but a) hire a lawyer or b) forget it?

(The copyfeed blacklist doesn't appear to block him for whatever reason.)

But most of the time it's within two or three days that you at least get an automated response if they're going to respond at all.

Did you email it or fax it? I've found the blanket approach of emailing, faxing and then if there's no response, sending it via mail is effective. This lets them know that it's not an idle priority for you.

Send it again as a follow up.

You didn't say whether the scrapers are hosting advertising opposite your content as well (though you mentioned that they said they weren't profiting from you). I've had my best success at shutting down scrapers when I turn off their revenue.

Consider contacting CopyFeed to file a help ticket because the blacklist isn't working either.

I emailed and snail-mailed it: I'll send it again via email, fax and snail.

They don't have any advertising that I can see. But I'll put the ticket in to CopyFeed. Thanks Cybele :-)

I have now received an email from the person taking our content, telling me that he has filed a counternotice and I must now file suit in [his state of the US].

I have had no notice of this from the hosts, so I don't know if it's true or not.

I cannot believe people can do this. Is that it? He can just go "what I'm doing is okay" and there is nothing I can do about it?!

I apologise for the above rather emotional post. I just have a couple more questions:
1) if he has indeed filed a counter-notice, will his hosts notify me of this? I have nothing but his email to go on.
2) if he has filed a counter-notice (if so, it will probably be on the grounds that my RSS feed is public property and/or that he isn't making a profit so it's fair use), do I have anywhere left to go but court?

> (The copyfeed blacklist doesn't appear to block him for whatever reason.)

They can use a reblogging service or software running on a different host to reblog different subjects to different sites. Did you check the 'uncommon uses' for your FeedBurner stats? Comparing the info with your logfiles can give you the more exact info from where the scraping calls are coming.

If this is happening more often it might be a good idea (for this forum?) to collect a mail/address list of reblogging/refeed online services.

> that my RSS feed is public property and/or that he isn't making a profit so it's fair use

a) RSS feed is just a technical platform and contains/implies no kind of usage/copyright license just by being an RSS feed. (Also every newspaper article is kind of 'public property' because laying on a public bank in a public park.)
b) Fair use is not to be discussed if the whole content is taken, no comment is made, no editorial additions are added, etc. Jonathan?

If you are not to upset you might go for a compromise: Offer the offender a feed via FeedBurner which is shortened and has some source information (via feedFlare) in the footer of each article.

Hi Markus,

Thanks for your response.

I've checked the uncommon uses on Feedburner, and he's there - there's a list of all the post pages in his "forum" which is where he's republishing our content. Sadly Feedburner doesn't seem to let me take any action on the basis of this info - or am I missing something?

I don't for one minute think that his use *is* fair use, but IF he has filed a counter-claim with his host claiming that it is, then there seems to be nothing I can do about it. It seems the effectiveness of the DMCA can be completely countered by a scraper who is prepared to brazen it out, knowing that a French blogger is never going to be able to take them to court in the US. Or am I missing something here too?

I have still heard nothing from the hosts. So I don't know if there really is a counter-notice filed or not.

I've been thinking about partial feeds. My idea was to offer two: one partial one with a CC licence on it and links back to our site, and one full one for "genuine readers" with full © on it. The problems as I see them though:
~ I'll have to change the feed he's taking to the partial one, which inconveniences everyone else already subscribed to it
~ I don't think I can bear to mail him and ask him to switch feeds.
~ What's to stop him just changing to the full feed and taking that - so everyone's inconvenienced for nothing.

The other idea I had was to file a new DMCA notice for every new post he takes. Then even if he just files a counter-notice every time, at least he'll have to bother to do that. Would that be an option, or would I get accused of harassment or something?

Sorry for ranting on again...

I just heard from the hosts: all the material has been removed.

Thank you so much to Jonathan, Cybele and Markus for your help and advice. Hopefully next time I won't need so much hand-holding ;-)