The blogosphere is coming of age. And the story of my recent experience with a well-known blog network illustrates a contentious issue in the blogosphere, contentious because blogging technology is just progressing too fast, even for bloggers. And because the law is moving even more slowly than the bloggers themselves. Before the dust settles, no doubt, many people will have spent many, many thousands of dollars (or maybe millions) in legal fees, sorting it all out.
My story began with an email from said major blog network, an email that was obviously written by a lawyer.
To understand the story, first I have to go back to last November, when I created a website dedicated to fandom for the TV show Gilmore Girls. This is Gilmore-ism.com. Being a software geek, an innovative feature inspired this site, an on-line database of short quotes from the TV show Gilmore Girls, with analysis. But being a software geek, I couldn’t help but add feature upon feature to the site.
One of these features is an on-site feed reader. I chose and categorized a number of important Gilmore Girls-related RSS feeds, and I provided a feed-reader service on the site, for people who don’t know RSS and don’t want to. Very much like I can share my BlogLines subscriptions. I’m not the first person to provide an on-site news aggregator, of course. But this is another feature Gilmore-ism.com has that no other Gilmore Girls fansite has.
The on-site news aggregator is primitive, yes. Primarily, it’s useful only for sharing lists of RSS feeds with other Gilmore Girls fans. Indeed, these pages get less than 1% of the traffic on Gilmore-ism.com. Most visitors either sign up to the original site’s feed. Or they sign up to my email list, expecting me to keep them up to date.
I Receive a Nasty Email
One of the blogosphere’s Gilmore Girls fan blogs is a member of a well known blog network, which I will call “Network 23.” Not their real name. I’m calling them that, after the fictional TV network in Max Headroom. The Network 23 blog is one of the sites I’ve recommended to my fans. And it’s one of the sites I’ve linked to, many times, both on Gilmore-ism.com and in the Gilmore-ism.com e-Newsletter.
So imagine my surprise when I got an email from one of Network 23′s staff, with the subject line “Unauthorized Use of Network 23 Property.” The email was clearly based on a template that some lawyer somewhere came up with. And like most lawyers’ letters, it did not give Network 23 a good name. Even less did it resolve any conflict. I’ve put a lot of time and energy into making Gilmore-ism.com a unique and original website, with innovative features found on no other Gilmore Girls fan site. Sending this email could only have accomplished one thing. And that is to sow angst while simultaneously covering your legal ass-ets. (Note that I am not a lawyer, which is how I can say this with a straight face.)
Let me take a moment to reiterate something that needs to be said much more often, especially to small business owners: You may need a lawyer for legal advice. But always remember, he is not the businessman. He doesn’t know your market. He doesn’t know your customers. And he doesn’t go bankrupt when they all desert you. So use your own judgement, and be polite to your customers. It’s your neck on the line.
Why do I think this email originally came from a lawyer? Firstly, it began, “To whom it may concern:” even though everyone knows me by name. And the person who sent the email also knew my name, because my name is displayed right there on the “Contact” page of Gilmore-ism.com, whence he sent the email.
Secondly, it contained paragraphs like the following:
It has been brought to our attention that the web site located at gilmore-ism.com, for which you are the site author, is distributing, displaying and reproducing unauthorized copies of Network 23′s content.
Actually, it read an awful lot like the note that Paramount sent to The Movie Blog… (Cue Twilight Zone theme.) Except I could have handled receiving that note. It at least said exactly what Paramount objected to and what they wanted The Movie Blog to do about it. The email I got from Network 23 was missing these key elements. But I’ll get to that in a sec.
As I said, I frequently linked to and referred my fans to Network 23′s blog. I quote from the same original sources. And I once had a rather marked difference of opinion with an editorial posted on that blog (though very few people seemed to care about the issue). But copyright infringement? Imagine my shock at receiving this email!
I pride myself on being a legitimate website operator and a responsible, upstanding netizen. I use double-opt-in on all my email lists, never send spam, and my email subscribers even tell me when their email addresses are changing, so they won’t miss a beat. And I respect copyright, even though I don’t always think copyright holders act in their own best interest. Still, I believe the only correct solution is to persuade them to adopt a better way… Or to provide their readers with alternative sources of vibrant, original content. But to rip them off? Why would I even consider such a thing?
The Network 23 email also invoked the ever-fearsome 4-letter acronym “DMCA,” requesting my “assistance in the removal of all Network 23 content from this web site and any other sites for which you provide services.” But as I said before, it omitted key details. In particular, Network 23 did not tell me which URLs were infringing, even though this is a DMCA-notice requirement. So I replied, politely asking which URLs Network 23 believed were infringing their copyright, so I could address the issue.
Let me reiterate again: Do not let your lawyer tell you how to interact with your customers, against your better judgement. And do not let your fear of legalities bully you into doing something stupid. Emails like this scare the recipient at best, and anger them at worst. Witness how The Movie Blog reacted to the Paramount notice. And by making demands specific enough to appear to have the force of government behind them (even if they don’t), yet vague enough that the recipient can’t actually know what he’s actually being told to do, to the recipient, this message could only feel more like dealing with a mob boss than with a respectable business… Except that a mob boss usually tells you exactly what he wants, even if it’s unreasonable.
For the record, this email did not come from the author of the Network 23 blog, but rather from a different Network 23 representative. And I don’t even know that the blog author had anything to do with it, even though it claimed to be written on his behalf. Again, that’s probably just legal boilerplate that means nothing. I’ve read plenty of legal boilerplate in my time, and plenty of it even contradicts the document of which it is a part.
Why BlogLines is Not Search-Engine Spam
Let me talk about how search-engine spam intrudes into my Gilmore Girls research. I see more search-engine spam than most people probably care to think about, because I use search feeds, from engines like Google and Technorati. For example, to get scoop on Gilmore Girls stories before anyone else does, in my feed reader, I have automatic searches set up to monitor the blogosphere for stories about Gilmore Girls.
Unfortunately, I’ll frequently see a story appear, followed by a dozen copies. All the copies are from spam blogs, which have illegitimately copied the original article. They do this so that when you go to Google or another search engine, and you type in “Gilmore Girls,” the spam site will be one of those listed. The site doesn’t actually contain any new information on the subject, much less any original content. But if you go there, you’ll see loads of ads.
Google and the other search engines hate search-engine spam, of course. And they have algorithms in place to filter it out. However, I end up seeing a lot of it, because I have my search feeds set up to give me up-to-the-minute results. I guess I see these results before the search engine’s filtering algorithm can kick in or something.
BlogLines also provides its own blog-search feature. But of all the feeds it tracks, and all the feeds that its users subscribe to, and all the subscriptions its users make public… Now, at this point, I was going to say that BlogLines prevents search-engines from scanning its users’ public subscriptions. Because I know I have a line in my robots.txt file to keep search engines out of my “aggregator” pages. This in fact is the default behavior in the latest Drupal. (Gilmore-ism.com uses Drupal, BTW.)
I assumed BlogLines did something similar. But then I double-checked. Google does index these pages. Which makes sense, because they’re not disallowed, either by robots.txt or by
So… How do BlogLines public subscriptions differ from search-engine spam? One reason is that there aren’t many people using them for this purpose. Indeed, why would a spammer do so? If you want to do search-engine spam, you plop up WordPress blog with an aggregator plug-in and some pay-per-click ads. You’re trying to trick user into coming to your spam site, because some portion of them will click on your ads. You can’t do this with BlogLines, because you can’t put up your own pay-per-click ads.
BlogLines is similar to what I do with the Drupal aggregator. Sure, my news aggregator is primitive. It’s missing features you expect from any serious feed reader. For example, after you read an item, you can’t mark the item as “read.” But the Drupal aggregator does behave at its core like a reader. It aggregates feeds, which appear on a separate page and not with the other content on the site. And the software caches aggregated items only temporarily, purging them after a period of time, just as you expect a feed reader to do. And as I said, I get no search engine traffic from this content, because it’s merely displayed to my site visitors as a service to them, not actually published with the rest of the content.
Second Thoughts and Feed Readers
As I had designed the feed reader portion of the web site very carefully, when I received the email from Network 23, it never entered my mind that this was a problem. As I said, the email didn’t specify which URLs they found objectionable. It only made sweeping generalizations, leaving me to try to read between the lines. And reading between the lines is something I’ve never been very good at.
(This is an argument my wife and I are continually having, so much so that we’ve gotten used to it. She tells me what’s wrong, but always leaves out the part about what she expects me to do about it. And I have to ask her for specifics, which annoys her, and so forth. Engaging, challenging, and way better than being lonely.)
If you had been inside my head, you’d understand. At first I thought I might have quoted more from one of Network 23′s blog posts than they might have liked… Although most of these posts basically copy content from other sources. Then I thought it might have something to do with the heated exchange of opinion between our two blogs some months ago, even though that’s a long time. I did quote heavily when I wrote that piece.
After I thought a little more, I considered that Network 23 might be objecting to the on-site feed reader. But why would they? The feed reader is only available to visitors of Gilmore-ism.com, not to search engines. It does not replace Network 23′s blog, but rather aggregates it with other sources, linking to all the original sources, as a good feed reader does. And its only possible use is to allow users to read the RSS feeds, which is (I assume) what the feeds are there for– so that people can read them without repeatedly visiting Network 23′s and the other blog sites.
In fact, I’ve analyzed traffic patterns for the aggregator. Less than 100 people look at it each month–hardly worth the effort. And after they look at it, then they go off to visit the linked-to blogs! (Duh. Like, what else would you expect, man?) I gather that they probably subscribe to those blogs directly, or decide they’re not interested at all. Of course, this is what sharing RSS feeds is all about. But it’s hardly a benefit for me, if I’m interested in keeping people at my site. Rather, it’s a perk I provide my visitors when they come to my site.
Still, the whole topic is a gray area. There are no established rules for what makes a public, on-line feed reader okay or not. This is unfortunate, and it seems to be resulting in some silly demands by bloggers.
More and more bloggers are including a copyright notice on their blog feeds:
This feed is for personal non-commercial use only. If you are not reading this material in your news aggregator, the site you are looking at is guilty of copyright infringement.
There’s even a WordPress plug-in that adds a copyright message like this to your feed. Sounds pretty reasonable on the surface, but what does it really mean? The whole license hinges on the question, “What is a news aggregator?” And it seems, different people have different ideas of what a news aggregator is. (One notice I saw even said that I could only view the feed on a reader that had no ads!)
If you read an article on BlogLines, is BlogLines guilty of infringement because “your” news aggregator is a different service?
Okay, so what if you read it at work? Does that make the use commercial?
What if your feed reader stores items on a company computer? What if your company or ISP uses a caching web proxy?
What if the blog post inspires a million-dollar idea that makes you rich? Will the blog author come after you for copyright infringement? (Crazier things have happened.)
Since FeedBurner and FeedBlitz provide on-site renderings of their customers’ feeds, complete with their own embedded ads, does that make them copyright infringers? Neither’s terms of service claims a license to do this.
What about blog indexes with integrated feed views, especially popular among podcasting directories?
What right does any blog author have to tell you how you’re allowed to read his feed? He makes the feed available to be read. Fair use demands that you be able to use any suitable method to read it; and it’s your choice, not his.
If you choose to use a web-based feed reader, does that make you a copyright infringer?
What if you can access the web-based feed reader anonymously, without registering?
What if the feed reader provides public views of subscribed feeds, like BlogLines or NewsAlloy? How long before United Media sues NewsAlloy for copyright infringement because you can read the Dilbert feed there?
If you select a group of feeds your fans might like, and you link to (or frame) a BlogLines public view, so that your fans can read those feeds there, does that make you a copyright infringer?
What if you allow them to read those feeds via a public feed reader? Does that make you a copyright infringer? Just because you’re making it easy for a very specific audience to view very specific RSS feeds?
Well… I guess if I put it that way, it doesn’t even pass the laugh test, does it? How silly is it of me to make it easy for my fans to view someone else’s published content? Why would I even want to do that? Because it benefits us both. That’s the power of the blogosphere. And that’s one of the advantages of social media.
The scary part is that the rules aren’t clear. If I provide a news aggregator service innovative enough not to fit into a certain blogger’s unstated conception of a “news aggregator,” I could get sued. And if I read someone’s RSS feed on a non-approved aggregator, could I get sued? You wouldn’t think so, but the rules are unclear. In either case, even if I’m right, and even if I were to prevail in court, it would cost us both many thousands of dollars. Because in any court battle, there are 4 parties: me, my lawyer, my opponent, and his lawyer. Two are winners, and two are losers. The lawyers never lose.
What’s a Blog For, Anyhow?
If I wanted to keep my content off the Internet, I’d have it printed in a book. In fact, I’m actually having a small booklet printed, but not to keep it off the Internet. Rather, to make it available off the Internet. But that’s a different story.
If I wanted to make my electronic content available only to certain people, I’d put it behind a login screen. In fact, I do that on Gilmore-ism.com, and I’m right now planning other sites that have content and features that require a user login.
If I wanted to try to force people to visit my website every time they want to read my content, I’d avoid RSS. In fact, some pages on some of my sites are never in an RSS feed, for a variety of reasons. Actually, there are plenty of good reasons to avoid RSS. But trying to make people visit your site repeatedly is not one of them. Because now automated programs will visit your site on the user’s behalf, alerting him when the content changes.
And if I want to make my content available to a wide and growing repeat audience on an ongoing basis, I put up a blog. This allows people to read my content using a feed reader or feed-reading service, as they see fit. It allows services like Technorati and Google to store and coallate my content so that people can find it easier. And for those who don’t yet do RSS–and there are many who don’t–there’s still the web interface.
The thing is, once I let that RSS feed out into the wild, I have to expect users to do things with it that I didn’t anticipate. I expect them to use transport mechanisms, software, services, and storage mechanisms that I could never even have imagined. All four of these are present in any feed reader, of course. But too many bloggers assume the technology won’t progress. It’s like, they just learned RSS, and now suddenly people are doing new things with it, and all the rules are changing.
By publishing an RSS feed, I’m giving permission for users to view that information. I’m also giving them permission to copy it for personal use, because that’s fair use. I don’t expect them to only use the technologies that I already understand and have approved of. I do expect them to use the full power of the Internet. And I expect third parties to provide services that help them do all the things they can do with my content.
Moreover, I expect them to link to my blog posts, because this is also one of the prime characteristics of the blogosphere. A blog is not just a means to publishing content. It’s also a means to take part in the global conversation. Even if I didn’t support comments or trackbacks on my blog–and I do support them both. But even if I didn’t, I would still expect people to respond to my writings. And as a good netizen, I expect to reply in turn. This is also one of the great powers of blogs as marketing tools, something many corporations don’t yet understand. A blog is not just a one-way communication medium; it is 2-way. It enters you into the conversation. Before blogs, in order to do that, you’d have to go to an online bulletin board or forum. And that meant you had to give up control to the operators of the forum, or you had to create your own forum and turn it into a community. Now, you can become part of the community from your own website. This is all a primary purpose of a blog, because RSS is the technology that makes this all possible.
Unfortuantely, opinions differ, even among bloggers. And technology is progressing way too fast for the law to keep up, putting us right in the middle of a huge legal grey area. As Fred von Lohmann of the Electronic Frontier Foundation noted to me in an email:
The copyright issues around RSS feeds are one of the great unexplored mysteries of the cyberlaw world. The answers may differ depending on whether your site or servers actually copy the feeds, or simply link to or frame the feed source. But the most likely answer for any of these questions is “nobody knows for sure” and “if you get sued, it will be expensive no matter how it turns out.”
As RSS continue to become more ubiquitous, I fear, it will continue to become a legal quagmire waiting for victims.
But there is an ironic up-side to all this.
Here’s What I Did
I waited a day for a response from Network 23, but I got none. By that time I had decided to take down all references and links to Network 23′s blog from Gilmore-ism.com. If you go there now, you wouldn’t even know Network 23 had ever existed.
I am not the only blogger to react this way to a legalese-filled email. Bloggers take note! Blogging is more about community than it is about right. If you are too centered on controlling what others do, you will lose the friendships that make your blog worthwhile. As the writer to the Hebrews noted, “Do not forget to entertain strangers, for by so doing some people have entertained angels without knowing it.” Therefore, treat others with respect, and assume good intentions on their part. If you fail to do that, it may not matter whether you were right or wrong.
(I finally did get a response from Network 23, but they never identified which URLs they believed had infringed their copyright, and I still don’t know for sure what they were talking about. But I’m thinking my educated guess is probably correct. They didn’t want my site visitors to read their blog. And now my site visitors, and all the people on my email list, aren’t.)
One final note, for the record: You may with any of my RSS feeds, transport them, view them, and provide services that allow others to view them, using whatever technology you choose. That’s what they’re there for. This includes my upcoming fiction blog, The Conscience of Abe’s Turn. You can even share my RSS feeds with others. Just please keep them intact. I will never come after you for doing so…
In fact, I’m formalizing this statement. Even when I publish content that is “All rights reserved,” if that content appears in an RSS feed, the RSS feed itself is licensed under the Creative Commons Attribution-NoDerivs License. I’m currently updating my copyright notices to state this on each site and in each feed. (Of course, some of my content uses an even less restrictive Creative Commons license.) In brief, the CC BY-ND License (as it’s more affectionately called) allows you to distribute or “publicly perform” the RSS feed, as long as you don’t change it and you attribute the original author. I think that should cover it.
I’d also encourage you to do the same for your RSS feeds. And get this legal nonsense behind us, so we can continue building the blogosphere.