History repeating itself?
One thing I’ve been wondering about from time to time: the copyright implications of news aggregators and the increasingly widespread use of RSS feeds. I’m told by serious bloggers and technologists who wrote the code — like Dave — that it’s understood that an RSS feed is to be republished and it’s not a big problem. Some say it’s “fair use,” others an “implied license,” others that there’s not enough of the text being reproduced to be a copyright violation. I, for one, think there’s no problem if you’re offering an RSS feed plus using a Creative Commons license that says “by attribution” or the like. In the current state of the Net, this arrangement seems not to be problematic.
But fast-forward a bit. Let’s say publishing through blogs really hits the mainstream: the google, Terra-Lycos, who-knows-what-other deals hit and blogs become a mainstream means of creating, publishing, learning. Businesses that rely on their ability to charge for content are into the act, so people start paying attention to who’s paying for what. Bloggers in today’s world, who trusted one another to play by understood rules, are now outflanked by the masses. The understood rules about how RSS feeds would work, even with full copyright protections, no longer suffice for some users — i.e., people who are publishing with RSS feeds and full copyright reserved start going after the republishers, the aggregators, who didn’t ask permission.
I fear that this could be like some of those first struggles on the Net. When the first Netizens were among friends, the law wasn’t really needed. But once the mainstream hit, the understood rules no longer sufficed. And what we got was a lot of bad law and a bunch of hard-to-follow lawsuits. Could it happen again here?
Dave Winer
April 7, 2003 @ 4:26 pm
John, we’ve already hit that wall. I think it was Martin Schwimmer, author of The Trademark Blog, who objected to an aggregator who was pulling together five legal weblogs into one site and putting ads on it, and giving no money to the authors.
Dave Winer
April 7, 2003 @ 4:26 pm
http://trademark.blog.us/blog/
Roger
April 7, 2003 @ 6:41 pm
Dave,
and what was the final outcome? And what were the lessons learned?
I think the easiest would still be that if you offer an RSS file, you agree that it can be reused under the conditions which you set out on the site.
And shouldn’t the use conditions (say cc licences) be part of the RSS feed as well?
Best
R
John Palfrey
April 7, 2003 @ 11:51 pm
Roger: That last idea is a terrific one! -JP
Hylton Jolliffe
April 8, 2003 @ 2:58 pm
Donna/John/Dave,
Seen this?: http://www.dailywhirl.com/
It appears to have just added Copyfight and some of its blogfriends to the mix…
Hylton
Roger
April 8, 2003 @ 5:52 pm
To John: As CC is already RDF’d, it’s probably very easy to integrate in RSS 1.0.
To Dave: What you are thinking about this idea?
One could then filter RSS feeds exactly according to the Creative Commons licenses.
Roger
April 8, 2003 @ 6:25 pm
Well, in the meantime I made a blog entry out of this first idea.
http://blog.bitflux.ch/p411.html
John, thank for thinking it is worthwhile.
Dave, do you think it is worthwile and could you imagine it being part of RSS 2.x?
Best
Roger
Bob
April 8, 2003 @ 6:49 pm
I’m Bob Helmer, owner of Daily Whirl, and I’d like to give you my views and questions regarding this matter as well.
First, rss/rdf can contain any amount of information, of course, and a number of sites are actually generating their web pages from those xml files.
Second, my sites, http://www.dailywhirl.com and http://www.dailyrotation.com make use of rss/rdf feeds to pull headlines from sites, along with links back to the site and to the stories the headlines represent. We have long considered this as 1. use of non-copyrightable titles, or, in the alternative, 2. as a fair use.
With regard to the fair use, yes, we have small text ads, but we are not actually pulling any substantial content from the sites, and we are in fact driving visitors back to them when the visitors are interested in the content described by the headlines.
We don’t think the Creative Commons licenses changes the “titles” issue, or the fair use issue; however, realizing that the author of the site has made a specific statement about usage, we are assuming they mean to apply that usage to their rss files too, and perhaps even to the mere headlines in those RSS files. So our policy has become that whenever the CC license requires more than attributon (we always give attribution), we ask permission. So far permission has never been denied.
We certainly do not mean to take an aggressive stance with regard to these matters. We respect copyright, and view ourselves as being an asset to the community, providing a service at least analogical to, if not identical to, a search engine.
My two cents about integrating anything more into RSS—fine, but we’re getting to the point where “simple” parsing is becoming more and more difficult. Obviously xml has lots of uses, particularly for sophisticated databasing. From the point of view of syndicating mere headlines, however, RSS 0.91 was ideal, and copyright tags were included in it. Lessig’s feeds, by the way, contain links to his CC license.
Roger
April 8, 2003 @ 8:20 pm
Well RSS 2.0, RSS 1.0. already have CC in the RSS feed – if you want.
See RSS 2.0.
http://backend.userland.com/creativeCommonsRssModule
or for RSS 1.0.
http://web.resource.org/rss/1.0/modules/cc/
I guess RTFM applies here and I am the one it concerns
For more info see Updates and Comments at http://blog.bitflux.ch/p411.html
Michael Bernstein
July 11, 2003 @ 1:30 am
IANAL.
Nevertheless, I don’t think that Dave’s objection to Mark’s Winer Watch site has merit. WW does not republish the whole of Dave’s feed, just exerpts from it (certain postings which are determined to have been edited), and that excerpting is clearly meant for purposes of commentary.
Guan Yang
July 11, 2003 @ 5:27 am
Couldn’t you argue that anything which is present in the RSS feed carries an implicit license? For example, most news site (e.g. the BBC feed) have the title and a short blurb from each story in their RSS. Presumably, it would be okay to syndicate and aggregate this content.
On the other hand, many webloggers (but not all) include the entire text of their weblog in their RSS feed. (Some popular software, such as Movable Type, does not do this in the standard config.)
Stephen Downes
July 11, 2003 @ 8:10 am
The problem is, when the lawyers get involved, common sense seems to go out the window. I mean, after all, if you go to the time and trouble of creating an RSS feed, it’s because you *want* your copy to be syndicated, isn’t it? It’s not like someone is going to go to your page and read the feed in their browser. And there is an exceptionally simply way of preventing people from syndicating your feed: stop publishing it.
This whole business of copyright is like a reverse Midas – it corrupts anything it touches.
Kevin Hinde
July 14, 2003 @ 8:28 am
Guan, the copyright notice in the BBC’s RSS feed explicitly prohibits doing what you suggest
http://news.bbc.co.uk/2/shared/bsp/hi/services/copyright/html/default.stm
It’s OK to aggregate the content for personal use, and to publish parts of it – but not OK to syndicate the whole feed out to other people.
We do this because
- we’ve got a reputation for being up-to-date which we need to keep. If other people re-syndicate our content they might not do it as fast as we would like
- we’ve got a reputation for editorial independence which we need to keep. If someone publishes the whole of our feed on their site, it can look like the BBC is endorsing that site, or that the BBC is receiving money from the advertising on that site (that’s what our users told us when we tested this).
Doug Simpson
August 1, 2003 @ 5:34 pm
The recent decision of the Ninth Circuit Court of Appeals in Kelly v. Arriba Soft addresses a similar situation … the display of low-res image ‘thumbnails’ by a search engine. The thumbnails were derived from copyrighted larger images. The Court applied a four-part balancing test and found “fair use.” This was issued July 7 and is a change from the Court’s earlier 2002 decision in the case sometimes known as the “Ditto.com” case.