The Legality of Republishing RSS Feeds
July 20th, 2006Tobias Schlitt “freaked out” today about PHP Freak’s republishing of his blog feed. He publicly withdraws his implicit permission for PHP Freaks to republish content from his feeds.
This is an interesting area of law. Eric Goldman has an rundown of the issues.
In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed. However, because it’s implied, I’m just not sure of the license terms. So, in theory, it could be an implied license to permit aggregators to do whatever they want.
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It is trivial to destroy an implied license, so bloggers can overcome any aggregator use simply by saying so. I’m not sure WHERE the blogger would need to say this (by the “syndicate” link? in the xml feed itself?). Perhaps any disclosure in any reasonable place would be sufficient to destroy the implied license.
So it would seem that Tobias has reasonably withdrawn his implicit license by placing the notice in the feed itself, as a post. The question of where a reasonable place to put such a notice is important. Since one can subscribe to an RSS feed without ever visiting the parent site, I think perhaps the only reasonable place for a terms of service for a feed is within the feed itself. Snow vs. DirectTV suggests that a warning isn’t necessarily enough to overcome an implicit license. Of course, I am not a lawyer so my interpretation may be flawed.
So what did PHP freaks do to incur Tobias’ ire? They republish content from RSS feeds and added advertising. I think adding advertising to aggregated content is perfectly legal. (I’m sure Google and Yahoo see things the same way when they place advertising in their web based mail readers.) However, phpfreaks uses an contextual advertising that replaces words in the content with advertising links, shades of the microsoft smart tags debacle. In PHP freaks’ favor they are very clear about attributing the source of their syndicated content and the fact that it is syndicated. Many aren’t. Additionally, the links are marked with a double underline and cause a hover box to appear which clearly labels them as advertising.
Still, I suppose one could make the argument that it is unclear who placed the advertising in the content, php freaks, or Tobias. For that reason, I think this form of advertising on third party content cross a line.
I am not anti-advertising in general. Advertising directly and indirectly pays many of my bills and I don’t begrudge someone else the opportunity to make a buck. I am also a publisher of copy righted content. And I’d rather that I made the buck off of my content than someone else. I think Tobias has the right to control the use of his material.
What do you think?
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July 20th, 2006 at 10:42 am
I’m with you on this - I think adding advertising below an entry in a clearly marked fashion is legit. Changing the words in the content into links for advertising (even if visually it is clear that they are added) comes close to making a derivative work I think… Obviously with RSS the whole point is that users can use the software of their choice to read a particular feed (including using phpfreaks as an aggregator), I don’t think that implicitly people have the right to take and modify your content before redistributing.
July 20th, 2006 at 10:59 am
Just to make it clear. I have no problem if anyone puts banners on the pages, where he aggregates my content. Advertisement on the web is quite necessary to finance free websites. But as you already said, with that kind of advertisment, they definitly cross the line.
So all in all, I’m fully with you!
July 20th, 2006 at 11:38 am
I agree with Tobia’ reaction too. I aggregate soccer blog feeds and have been approached to put link text ads on the site but have refused. The blog author’s I have talked to don’t mind me running google ads on the site, but I think they would be more vocal if I was doing something that alters their content.
July 20th, 2006 at 2:59 pm
Readers are not stupid. I’m in favour of not publishing anything I don’t want to spread. It is the base of internet, put it online and let it live (with all pros and cons). Or maybe I’m still “old school”.
July 20th, 2006 at 4:06 pm
I think what also confuses the matter is that a copyright “license” generally does not circumvent copyright law or fair use laws. Many countries have “fair use” laws that allows you to excerpt or quote copyrighted material. In US law how much you can “legally” excerpt depends on “amount and substantiality of the portion used in relation to the copyrighted work as a whole”. Of course that sounds very subjective, doesn’t it?
July 20th, 2006 at 10:59 pm
It’s not that simple. PHPFreaks weren’t aggregating Toby’s feed, they were aggregating the feed from PHPDeveloper.org, who was simply quoting the post that Toby made on his blog.
So morally I agree with you, but legally I’m not sure if toby has any control over what he has already let PHPDeveloper publish.
July 21st, 2006 at 12:24 am
Maybe it’s time for the RSS and Atom standards to be extended with a license tag (or is this already available? My knowledge of the standards is not that good).
If so, Tobias and anyone else could simply add a creative commons license to the feed. Better yet, for aggregating sites such as phpdeveloper, would be to be able to add a license to each post. If Tobias then, for instance, would choose a cc license that does not allow derivatives or commercial use, then he’d have a legal foothold against PHP Freakz. As some others mentioned before, in the current system there is probably no way that legal action can be taken so far. Morally, I definitely agree with what is said above. Advertising above, next to, or under syndicated content is OK. But advertising inside syndicated content by altering parts of the content crosses a lone.
July 21st, 2006 at 1:32 am
I’m on Pierre here - all in all RSS is only what its’ name states: a really simple sindication that has its’ pros and cons. Putting a license into it would be an exaggeration.
July 21st, 2006 at 3:24 am
Pierre wrote:
“Readers are not stupid. I’m in favour of not publishing anything I don’t want to spread.”
But i think Tobias wanted it to spread around the internet, thats why he hasn’t got any problems with PHPDev to spread it around. The thing is, he didn’t want it to be mixed with banner content, so noone can make the distinction between ads from the aggregating page, and ads from him.
July 21st, 2006 at 7:40 am
Irrespective of whether it is right or wrong, it will be impossible to police. For example, my RSS gets aggregated into a feed by site (A), site (B) then syndicates the aggregated feed from site (A) and aggregates it with feeds from sites (C) & (D). Site (E) comes along and syndicates the aggregated feed from site (B) and adds advertising.
If my licence expressly forbids people from using my content with advertisements how do I enforce this? Do I tell site (E) not to add advertisement to RSS entries originating from my website or do I tell site (B) not to syndicate their aggregated feed to site (E)?
July 21st, 2006 at 8:00 am
Maybe a stupid idea but what would happen if Toby would create links for every entry where the freaks would link to the provider? If they would still replace it they will have a legal problem I suppose.
Hans
July 21st, 2006 at 9:18 am
Having pondered about this for a while, perhaps the solution is not to sindicate complete articles, but just a ‘taster’ with a link back to the original article…
July 22nd, 2006 at 12:30 am
Richard: Being syndicated across many sites would not be a problem, if there were a possibility to add a license to each post. As long as the site B) which syndicates the posts even further would also syndicate the associated license, then there would be no problem. In the case of Tobias, he would select a non-commercial, non-derivative license, and phpfreakz would be able to, based on the license, determine which posts they could alter to include advertising, and which posts they would have to show unaltered.
August 4th, 2006 at 5:36 pm
So, just so I’m clear on the subject.. I have a blog.. and by having it.. I’m giving unstated right for someone to see it and publish it elsewhere.. UNLESS I specifically post that I do not want it re-published elsewhere? Is that what I’m reading here?