11th Circuit Sides With Medical Blog in Copyright Fight

A three-judge panel ruled that the aggregator’s practice of republishing dozens of articles found in the blog’s RSS feed violated copyright law and didn’t fall under fair use.

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Eoghanacht/Wikipedia Commons)

ATLANTA (CN) — The 11th Circuit on Wednesday upheld a Florida jury’s verdict in favor of a medical blog in a dispute with a content aggregator, ruling in a unanimous decision that the use of the blog’s content in an academic index without permission violated copyright law.

In a 31-page opinion, a three-judge panel of the Atlanta-based appeals court found that news aggregator Newstex, also known as ACI Information Group, did not have an implied license to copy and publish blog content collected from ThriveAP’s RSS feed.

ThriveAP, formerly known as MidlevelU, sued ACI in 2018 after it discovered that the aggregator was republishing its free blog articles to a curated index of academic blogs and abstracts known as the Scholarly Blog Index. ACI offered index subscriptions to academic libraries.

ThriveAP publishes articles for mid-level healthcare providers like nurse practitioners and physician assistants on its website and in an RSS feed.

Although the site included a copyright notice on the feed, it did not include a copyright notice for each individual article.

After a four-day trial, a jury found that ThriveAP proved it owned a valid registered copyright on 43 blog articles and that ACI had willfully infringed on those articles. The jury awarded ThriveAP $202,500 in statutory damages.

Rejecting ACI’s arguments that ThriveAP’s choice to use an RSS feed created an “implied license” to copy and redistribute the articles, the 11th Circuit ruled Wednesday that ACI failed to show that disseminating content through an RSS feed without restrictions “implied permission to copy and publish that content on another website.”

“Newstex introduced no evidence that any other websites republished content received from an RSS feed, much less that the practice was customarily accepted. Nor did Newstex present evidence that MidlevelU knew about the practice and permitted it,” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote on behalf of the panel.

ACI also claimed that its use of the content was similar to Google’s practice of using web crawlers to locate, copy and archive webpages for its search engine index.

But the 11th Circuit ruled that ACI failed to present evidence that it ever used a web crawler to collect content like Google does.

“On the contrary, Newstex presented testimony that it collected content by “grab[bing] [it] through RSS feeds.” Implied permission to enter through a front door (web crawler) does not also imply permission to enter through a back window (RSS feed),” the ruling states.

The panel also found that “reasonable minds could differ” as to whether ACI’s use of ThriveAP’s copyrighted articles in the Scholarly Blog Index fell under fair use and ultimately rejected the argument.

The court found that making the articles searchable through ACI’s index was not a “transformative” use of the copyrighted material.

“With evidence before it that Newstex sold the Index including MidlevelU’s content and that Newstex paid other content providers for full-text licenses, the jury could have reasonably found that Newstex “st[ood] to profit from exploitation of the copyrighted material without paying the customary price,” the panel ruled.

Pryor was joined on the panel by U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee, and Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee.

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