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RSS does not mean Reuse Share Sell: taking the Pulse of noncommercial

Posted Tue, 22/06/2010 - 14:52 by Paul

feed-icon-96x96.pngThe Pulse RSS reader caused quite a stir when Steve Jobs demonstrated it during his recent WWDC keynote speech. He talked briefly about Pulse's merits and as used it as an example of the sorts of applications which are available for the iPad in the iTunes App Store. He probably didn't count on the New York Times' lawyers taking issue with the Times' feed being one of the feeds Pulse ships with by default, particularly considering that Pulse is a paid application. NYT's lawyers wrote to Apple requesting that Pulse be pulled from the App Store alleging as follows:

The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.

I note that the app is delivered with the NYTimes.com RSS feed preloaded, which is prominently featured in the screen shots used to sell the app on iTunes.

The full email was republished on Kara Swisher's blog. The NYT's terms of service provide as follows:

2. NYTIMES.COM CONTENT

2.1 The contents of the NYTimes.com sites are intended for your personal, noncommercial use. All materials published on NYTimes.com (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips, also known as the "Content") are protected by copyright, and owned or controlled by The New York Times Company, NYTimes.com, or the party credited as the provider of the Content. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Service.

2.2 The Service and its Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.3 of these Terms of Service), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.

2.3 You may download or copy the Content and other downloadable items displayed on the Service for personal use only, provided that you maintain all copyright and other notices contained therein. Copying or storing of any Content for other than personal use is expressly prohibited without prior written permission from The New York Times Rights and Permissions Department, or the copyright holder identified in the copyright notice contained in the Content.

The terms of service clearly restrict use of NYT content to "personal, noncommercial" use and, as the extract from NYT's lawyer above indicates, NYT was of the view that including the NYT's feed in the Pulse application was a commercial use of that content, apparently because the NYT believes its content was used to sell Pulse. NYT also objected to Pulse "framing" NYT and Boston Globe content in the application, presumably a reference to how these websites can be displayed in Pulse like a Web browser. In fact, Pulse incorporates a Web browser to display actual Web pages rather than just the published RSS or Atom feeds.

I have been listening to the debate on a recent episode of This Week in Law about the merits of NYT's lawyer's contention that Pulse infringed NYT's terms of service and made use of NYT's and its affiliate's content for uses that were not personal and noncommercial. Evan Brown expressed a view early on in the podcast that seemed to mirror the view held by NYT's lawyer; namely that the terms of service prohibit commercial use of NYT's content and Pulse's use of the content was commercial, therefore a violation of the content license the NYT grants to its readers. This, in turn, justified NYT's call for the application to be pulled. I initially agreed with his view and disagreed with TWIL host Denise Howell's arguments that aggregators like Pulse should be regarded as utilities and effectively exempt from any argument that they infringe copyright simply because they display content feeds that the content owner publishes (I believe that summarizes her argument fairly).

I do see Denise's point and agree that regarding a paid RSS reader as infringing copyright because it displays a feed which may have a noncommercial restriction is as absurd as claiming Google; Mozilla; Apple, Opera or any Web browser developer is liable for copyright infringement because their browsers display content with similar restrictions. On the other hand, I don't believe that this is what the real issue is. The real issue in this case is whether a paid RSS reader like Pulse is making commercial use of content either by displaying it at all or if it displays the restricted content in its marketing material? The term "noncommercial" has proven to be a particularly tough one to pin down, so much so that Creative Commons commissioned a study on what people generally understand by this term.

On the one hand, Pulse is a paid application and a user's purchasing decision may be influenced by the appearance of the NYT's content in the application when it is demonstrated. What if the NYT's content was not included in the application's demonstrations? What if a user purchased the application and subsequently added the NYT's feed to Pulse and consumed that content on a personal and noncommercial basis? Would this use still be tainted by the price charged to use Pulse? NYT's lawyers would seem to argue this is the case but this argument is increasingly absurd when you consider that the argument necessarily means that Google, Mozilla, Apple and Co. must similarly be on the hook for copyright infringement if people view the NYT website in their browsers.

The central question should be whether the use of the content is permitted by the relevant content provider's terms of service or content license and not whether the technology used to access that content permits that access, as I understand Howell's argument to suggest, in part. Assuming I understood this to be one of Howell's points correctly, the logical implication of her further argument is that it should be legal to pirate and share pirated content because the means exist to make this possible. Rather, the argument should focus on the relevant content license which may have been applied to the content (or, in the absence of a license, the restrictions of copyright law itself).

I see selling content as a clear case of commercial use. On the other hand, enabling a person to view content in a freely available Web browser shouldn't be regarded as commercial use of the content. The fact that Pulse is a paid application shouldn't, in itself, make displaying the NYT's content (either the website itself or its published feeds) commercial but perhaps selling the application with an implication of NYT's endorsement or, worse, that NYT content is part of the deal could be commercial use of NYT's content. The answer to this question isn't clear but the closer Pulse's developer gets to actually making profit from NYT's content directly, the clearer it is that his use of NYT's content is commercial. The developer is probably best served removing NYT content from the application as it ships and to refrain from referring to it or displaying it in the application in his marketing material.

What this furore highlights, though, is that some publishers publish their content under restrictive content licenses which are typically detailed in their terms and conditions. I have advised a couple clients who has assumed that if content is published through a feed they should be free to use that content however they please but this is simply not the case. Irrespective of the technology used to publish the content, content licenses still apply to that content and use of the content should be moderated accordingly.

Profiled on ITWeb about navigating the Web's legal minefields

Posted Fri, 04/06/2010 - 15:07 by Paul

Mandy De Waal, a freelance journalist, columnist and writer approached me a little while ago to be profiled for ITWeb (disclosure: ITWeb is one of our clients). For those who are not familiar with ITWeb, it is one of South Africa's premier online ICT news sites. I accepted immediately and the profile has just been published:

ITWeb profile image.png

I am really excited to be profiled on ITWeb. It is a great opportunity to communicate some pretty important issues and perspectives to ITWeb readers.

The Mxit scapegoat

Posted Tue, 11/08/2009 - 09:00 by Paul

Once again the media and parents are taking aim at Mxit after a teenager disappeared for a few days in what seems to have been a planned "outing". It also transpires that the teenager is/was a Mxit user and may have met up with someone she met using the service. Unfortunately the media has fixated on Mxit's peripheral involvement and is portraying it as a den of iniquity and insecurity where children are routinely picked up by sexual predators.

This isn't the first time Mxit has been targeted like this. I conducted an interview with Mxit's Herman Heunis about 2 years ago for the chilipod podcast (the podcast came to an end in late 2007 or thereabouts) which is worth reposting here because it deals, in part, with the allegations laid against the service:

Mxit has maintained an online safety guide for parents for quite some time now (although it could do with a revamp - it isn't very user friendly). I may be wrong but I believe this guide was available around the time of my interview in August 2007. Unless the service has changed fundamentally since my interview with Herman, the service is built around anonymity. Users' names, phone numbers and other identifiers are not available publicly and users are required to approve friend requests they receive before other users can interact with them. The security risk is the user him/herself, not the service. Although there are safeguards built into the service, education about the risks other users pose is vital and this is where the responsibility shifts to parents and to teachers.

Parents and teachers have a responsibility to educate children about the risks involved in using social networks. This applies to all online social networks, not just to Mxit. It is also important to highlight the value of using privacy filters and security measures that are baked into these services. It is misguided to simply give children access to these services and expect the service itself to police what they do with the service. Parents absolutely must take an active interest in what their children are doing with their phones and online and if they don't understand the technology, they have a responsibility to educate themselves about these services. Childline's provincial director, Linda Naidoo was quoted recently in IOL:

Childline provincial director Linda Naidoo said parents needed to start engaging in the latest technology so that they could gather knowledge on how to protect their children.

"Offenders are always a step ahead when it comes to tactics in luring children because they are so vulnerable. Teen chat zones are a huge concern when it comes to child safety. Therefore parents need to get on MXit and find out how it operates so that they can better monitor what their children are up to in the technological world," she said.

This phenomenon is not new. It has been around for about as long as children and teenagers have had access to online chat rooms. The simple fact is that the younger generation is more technology savvy than the older generation and children today seem to take to the Web far quicker than their parents. This makes it even more important that parents familiarise themselves with these services as well as the terms that govern those services. They need to understand the risks, educate their children and, if necessary, moderate their children's access to these services.

(Image credit: Hello Operator by Andrew Stawarz licensed under a Creative Commons Attribution No Derivatives 2.0 license)

Press subjected to a different test in defamation cases

Posted Thu, 11/12/2008 - 12:33 by Paul

Defamation is a hot topic these days with Donn Edwards' battle with Quality Vacation Club being the most talked about stories in the South African social Web. Defamation cases are strange beasts. They don't involve large monetary awards and they can be particularly complex cases to prosecute (whether you are in the firing line or the one pulling the trigger). In order to succeed in a defamation action, a plaintiff must establish that the defendant has published defamatory material that a “reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff”. If the plaintiff is successful in proving this, the defendant must then establish the existence of a substantive ground of justification if the defendant is to escape liability. These grounds of justification, or defences, include the fact that the defamatory material is true and in the public interest, fair comment and even that the material was in jest. There isn't a closed list of defences but these are some of the more common ones.

Before 1998 the press were subjected to strict liability for defamatory material it published. This meant that owners, publishers, printers and editors were immediately liable for defamation if a plaintiff could prove that the material was defamatory. The defences available to individual defendants were simply not available to the press. It wasn't even necessary to prove that the publication was negligent or published the material intentionally, knowing it was defamatory. The state of the law at the time left the press in a difficult position.

In 1998 the Supreme Court of Appeal ruled on the case of National Media Limited v Bogoshi and changed the law. The court overturned its own earlier decisions and said that the classic defences to defamation were available to the press as well. However, the courts have also recognised that defamatory material published in the media can have a far reaching effect so the courts have said that the press will be held liable if found to be negligent in publishing defamatory content (the flip-side is that a publication can escape liability by proving that it acted reasonably in publishing the material concerned). In answering the question whether defamatory material was published negligently, the following factors will probably be taken into account:

But where publication is justifiable in the circumstances the defendant will not be held liable. Justifiability is to be determined by having regard to all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern in the information; the reliability of the source; the steps taken to verify the truth of the information (this factor would play an important role too in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

This new angle on the press' liability in defamation cases provides the press with an additional defence and, at the same time, a slightly more challenging test to meet. The freedom of the press is an important component of the freedom of expression which is entrenched in the Bill of Rights and decisions which followed have placed particular emphasis on the press' role in both protecting and promoting freedom of expression in South Africa. A decision which followed the Bogoshi case contained a particularly interesting quote which reveals the Constitutional Court's perception of the press:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. As Deane J stated in the High Court of Australia:

“. . . the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.”

The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.