What the High Court decided about broadcasting the Oscar Pistorius trial

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

For one thing, you probably won’t see any video of Oscar Pistorius’ or his witnesses’ testimony (although you may hear it on radio). You won’t see close-ups either. This decision is more about upholding rights than it is about the hype.

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

Weighing up competing rights

The various considerations and rights are summarised in the opening paragraph of the judgment:

The electronic, broadcast and print media have approached this Court to grant them permission to broadcast the entire criminal proceedings in the matter of The State vs Oscar Leonard Pistorius (Pistorius). They seek permission to do this through audio, audio-visual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.

Judge Mlambo highlighted the media’s importance in a democratic society and quoted a number of court decisions dealing with the freedom of the press in the context of court proceedings. In the case of Khumalo and Others v Holomisa, the Constitutional Court said the following:

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.

Broadcasting the trial (and allowing for broader coverage of any trial) is closely linked to not only freedom of expression but also the principle of open justice. As Judge Mlambo pointed out –

Our Constitution is underpinned by a number of values and for purposes of this case I refer to openness and accountability. In this regard it is also important to take cognizance of the fact that sections 34 and 35(3)C) make it very clear that even criminal proceedings in this country are to be public. The basis for this is that courts of law exercise public power over citizens and for this it is important that proceedings be open as this encourages public understanding as well as accountability.

The Judge went on to quote from the case of S v Mamabolo in which the Constitutional Court said the following:

Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution

That said, this isn’t just about the media’s interests. Pistorius’ legal team argued that broadcasting the trial would compromise his right to a fair trial. He went as far as to argue that if the trial is broadcast, he would be denied a fair trial. His concerns were summed up as follows:

Pistorius contends that the live broadcasting of his criminal trial, through audio (radio), audio-visual (television) and still photographic means, will infringe his right to a fair trial. His view is that the mere knowledge of the presence of audio visual equipment, especially cameras, will inhibit him as an individual as well as his witnesses when they give evidence. He has also asserted that his Counsel may also be inhibited in the questioning of witnesses and the presentation of his case. He further is of the view that covering his trial as is sought by the applicants will enable witnesses still to testify to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified. In his view the requested broadcasting of his trial will have a direct bearing on the fairness of the trial and contends that should the relief be granted he will most certainly not enjoy a fair trial.

The Judge accepted that Pistorius’ concerns are valid and set about balancing his right to a fair trial with the media’s right to freedom of expression and the principle of open justice. This process doesn’t involve placing more value in one or another right over the others but rather as the Court in Midi Television (Proprietary) Limited v Director of Public Prosecutions proposed –

Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36.

Judge Mlambo was also cognisant of the risks with televised broadcasts and referred to the judgment of the Constitutional Court in South African Broadcasting Corporation Limited vs The National Director of Public Prosecutions where the Court said the following:

Before turning to the question of the order, we consider it helpful to set out some considerations which in our view need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than from full live broadcasts.

What was interesting about Judge Mlambo’s judgment is how the judge differentiated between the impact radio and TV could have. In striking a balance between these competing considerations, Judge Mlambo made a series of orders.

What you will be able to see and hear

For starters, TV broadcasts will not include Pistorious’ or his witnesses’ testimony. Judge Mlambo ruled on this aspects as follows:

In balancing the competing rights at stake it is my view that the objection by Pistorius regarding the audio-visual recording as well as the still photography of him and his witnesses should not be taken lightly. It was argued on his behalf forthrightly that the inhibitory effect of audio-visual recording equipment, in particular the knowledge and awareness thereof by himself and his witnesses, will be great when they give their evidence. This potential was recognized by our highest court in the SABC vs NDPP. For this reason I am of the view that the audio-visual or televising and still photography of Pistorius and his witnesses when they testify be disallowed as this has the potential to deprive him of a fair trial on the grounds spelt out in argument on his behalf. I am persuaded that there is merit in his fears and that of his witnesses that they may be disabled somewhat in giving evidence.

TV broadcasts will likely include much of the State’s experts and witnesses although the Court made allowance for concealing witnesses’ identities if they require this. You will also be able to follow legal arguments and similar aspects of the trial.

On the other hand, you will probably be able to listen to most of the trial on radio as, Judge Mlambo reasoned, radio doesn’t have quite the same impact as TV or TV’s more problematic features in this sort of situation. The Court also imposed a number of restrictions on still photography which exclude photography of Pistorius, his witnesses and other witnesses who object. The judgment goes into quite a bit of detail about which cameras may be placed where, how they may be operated and supervised and more. Something else you won’t see are emotional close-ups of anyone. Those have also been prohibited.

Once again, be mindful of what you tweet

The point of allowing the trial to be broadcast is not to play to the hype surrounding the trial but more to give effect to the various rights and public policy considerations involved here (at least from the Court’s perspective). Judge Mlambo made a special point of addressing concerns about the planned coverage which everyone should take a few moments to consider:

I must hasten to mention that the decision I have come to should be embraced with the objective I have spelt out in this judgment. I mention this as it has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.


p>In other words, be careful what you say online, in public discussions and, especially, if you are commenting on the case as part of the planned public broadcasts. As the judge said, there is one court that will adjudicate this matter and made any determinations of guilt. As far as the law is concerned, Pistorius is innocent unless the Court subsequently finds otherwise.

Cancer stories and contextual privacy

If you are unfamiliar with Twitter direct messages, they are inherently private and only people who follow you may send you direct messages. Aside from not informing Adams that she was writing a story about her, Keller apparently did not obtain Adams’ permission to repeat the direct message conversation and that violated Adams’ privacy, regardless of how public she is about other aspects of her experiences. 

Privacy on the social Web is tricky. A year after Randi Zuckerberg’s reminder that privacy is nuanced and contextual, Emma Keller, writing for the Guardian, crossed a few lines in her article about Lisa Adams’ experiences with breast cancer which was titled “Forget funeral selfies. What are the ethics of tweeting a terminal illness?” and was withdrawn by the Guardian after a controversy exploded on Twitter. The article is still available in the Internet Archive’s Wayback Machine if you would like to read it.

In her post titled “Social Media Is a Conversation, Not a Press Release” on Medium, Zeynep Tufekci explored a few themes that emerged from the controversy, including the ethical implications of Keller’s approach and the value of a public conversation about cancer. Although the subject resonates with me, generally, (my father passed away on 2003 after a short struggle with pancreatic cancer), this aspect stood out for me:

Emma Keller admitted that she had conversed with the subject via email and DM on Twitter without telling her that she was doing a story about her, and quoted Lisa Adams’ private direct messages without as much of a notification, let alone a permission.

In her article, Keller referenced a direct message conversation she had with Adams:

In some ways she has invited us all in. She could argue that she is presenting a specific picture – the one she wants us to remember. “I do feel there will be lasting memories about me. That matters,” she wrote to me in a direct message on Twitter.

If you are unfamiliar with Twitter direct messages, they are inherently private and only people who follow you may send you direct messages. Aside from not informing Adams that she was writing a story about her, Keller apparently did not obtain Adams’ permission to repeat the direct message conversation and that violated Adams’ privacy, regardless of how public she is about other aspects of her experiences. She related another incident which highlights the nuances:

She describes a fantastic set up at Sloan-Kettering, where she can order what she wants to eat at any time of day or night and get as much pain medication as she needs from a dedicated and compassionate “team”, but there is no mention of the cost. She was enraged a few days ago when a couple of people turned up to visit her unannounced. She’s living out loud online, but she wants her privacy in real life.

Privacy isn’t an all or nothing thing. As I pointed out in my post about Randi Zuckerberg’s contextual privacy experience last year –

The seminal case on the right to privacy in South Africa is the Constitutional Court case of Bernstein and Others v Bester NO and Others. The Constitutional Court said that the right to privacy is informed largely by a legitimate expectation of privacy which, in turn, means that a person must establish that:

“he or she has a subjective expectation of privacy and that the society has recognized that expectation as objectively reasonable.”

The subjective component means that a person can’t have an expectation of privacy where that person has consented to have his or her privacy invaded. The objective component introduces a requirement for reasonableness when assessing an apparent privacy violation. There is a notion of a “continuum of privacy interests” which is a helpful application of this idea of a legitimate expectation of privacy. The Court in the Bernstein case said the following:

“The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

This is an explanation for why people in the public eye have a different legitimate expectation of privacy than people who are deeply private and secretive. A person’s legitimate expectation of privacy is determined by their level of publicity and the consents they have given to invasions of their privacy.


p>Keller made a common mistake of assuming that because Adams is public about some aspects of her cancer experiences that she has waived her expectation that the rest of her life enjoy some measure of privacy. This is not the case. Privacy is a complex and nuanced set of expectations and rights and is complicated by the very public fora we use to share aspects of our lives. Nevertheless, it is a model which confounds many people, including journalists who should take greater care with information they are privy to.

Hangout: What we’re talking about at the 2012 #ITWebSocial Summit

Today’s Hangout will be an interview/discussion with Tallulah from ITWeb Events about our contribution to the ITWeb Social Media Summit next week. We’re going to run the Hangout on our Google+ page and embed the video on our event page. The Hangout will begin at roughly 3pm today and should be streamed live as well as recorded for you to watch later.

We’re making this a cross-platform Hangout and ITWeb Events has invited its fans to submit questions for Paul to answer on Twitter. If you would like to participate on Twitter, simply tweet your question and include the #ITWebSocial hashtag. You can also @-mention us @webtechlaw or Paul at @pauljacobson.

If you’d like to participate on Google+, we have published an open invitation. At the moment event invitations and Hangouts they promote don’t integrate very well so look out for the link to the actual Hangout on our page. If you join the Hangout, post questions in the chat window or in the comments on the Hangout post itself. It’s a little complicated but we’ll keep an eye out for great questions all over the place.

Privacy, freedom of expression and Julius Malema’s failed City Press gag attempt

Dada Julius Malema

When Julius Malema learned that the City Press was about to publish details of his wealth and resources, he launched an urgent application to stop the publication from going to press. Judge Colin Lamont ruled against Malema in an judgment which seems reminiscent of the judgment against the former and late Health Minister, Judge Lamont ruled, at least in part, that being a public figure exposes you to greater scrutiny and a reduced privacy expectation. According to City Press:

Lamont – coincidentally the same judge who heard the hate speech case brought against Malema by AfriForum – also shattered the youth leader’s belief that he is a private citizen entitled to the same level of privacy “normal” South Africans enjoy.

“At present, there is a discussion in the press concerning whether or not his income justifies his expenses,” Lamont said.

“The question of Mr Malema’s income is topical and relevant. The public is entitled to have full disclosure by persons who stand in public position, and who are high-profile personalities who invite comment about themselves.”

I haven’t seen a copy of Judge Lamont’s judgment and will look out for it but Judge Jajbhay dealt with many of the issues I imagine Judge Lamont considered in his judgment in the Msimang case. In that earlier matter Judge Jajbhay wrote at length about the sorts of competing considerations I expect came into play in Malema’s case. The extract below is from Judge Jajbhay’s judgment, starting at paragraph 35.

The freedom of the press is celebrated as one of the great pillars of liberty. It is entrenched in our Constitution but it is often misunderstood. Freedom of the press does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

As a general matter, any person is likely to feel violated, harmed and invaded by the publication of unlawfully obtained information. Any reasonable person would probably feel less concerned if their discussions of an upcoming metropolitan council election, or the state of the global economy was unlawfully intercepted and subsequently published, than that person would if their discussion of intensely private matters such as family disputes or medical records were illegally intercepted and published for a larger audience. Similarly, on the public interest side of the equation, the public will certainly be interested and accordingly benefit from discussion of matters which are clearly in the public interest.

Public interest it must be noted is a mysterious concept. Like a battered piece of string charged with elasticity, impossible to measure or weigh. The concept changes with the dawn of each new day, tempered by the facts of each case. Public interest will naturally depend on the nature of the information conveyed and on the situation of the parties involved. Public interest is central to policy debates, politics, and democracy. While it is generally acclaimed that promoting the common well-being or general welfare is constructive, there is little, if any, consensus on what exactly constitutes the public interest.

The public has the right to be informed of current news and events concerning the lives of public persons such as politicians and public officials. This right has been given express recognition in Section 16(1) (a) and (2) of the Constitution which protects the freedom of the press and other media and the freedom to receive and impart information and ideas. The public has the right to be informed not only on matters which have a direct effect on life, such as legislative enactments, and financial policy. This right may in appropriate circumstances extend to information about public figures.

The question then is who is a public figure and to what extent may such a public figure rely on his or her right to privacy to prevent publication of matter he or she would rather keep private? Here, professor McQuoid- Mason offers the following test:

“In short it is submitted that the test whether a person is a public figure should be: has he by his personality, status or conduct exposed himself to such a degree of publicity as to justify intrusion into, or a public discourse on, certain aspects of his private life? However, non-actionable intrusions on his privacy should be limited to those that are in the public interest or for the public benefit, so that unjustified prying into personal affairs, unrelated to the person’s public life, may be prevented.”

Where a person seeks publicity and consents to it, or in relevant circumstances, by the nature of the position occupied by the individual, this individual cannot object when his or her actions are publicised. This principle applies equally, in appropriate cases, where the information sought to be published has been unlawfully acquired. However, any such interference must be both reasonable and necessary. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.

Freedom of expression includes the right to acquire information and to disseminate it. Freedom of expression enables people to contribute to debate on social and moral issues. This right is the most important driver of political discourse so essential to democracy, which in turn is a concomitant of a free society.

The City Press’ articles paint a revealing picture of Malema’s finances and his dealings with various businesspeople who allegedly make substantial contributions to Malema’s trust fund. Regardless of how this affects his political career, the judgment is a welcome contribution to the growing body of law on freedom of expression and where it intersects with privacy rights.

Image credit: Dada Julius Malema by Roy Blumenthal, licensed CC BY SA 2.0

Lessons learned from Google’s Transparency Report

Google makes a number of people nervous when it comes to personal information and has made its share of mistakes. That said, Google has also made significant strides in giving its users greater control over their personal information on its servers. While users have a pretty good idea what personal information Google has collected from them and have options when it comes to getting that personal information out of Google’s services, the one area which Google has remained somewhat opaque about is what personal information Google has been giving government agencies behind the scenes … at least until now.

What many people may not realise is that Google can be compelled to hand over users’ personal information to a variety of government agencies, worldwide. This may be in terms of local regulatory or law enforcement mechanisms. Google’s privacy policy deals with this and states that it may hand over your personal information when faced with such requests:

Google only shares personal information with other companies or individuals outside of Google in the following limited circumstances:

  • We have your consent. We require opt-in consent for the sharing of any sensitive personal information.
  • We provide such information to our subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of processing personal information on our behalf. We require that these parties agree to process such information based on our instructions and in compliance with this Privacy Policy and any other appropriate confidentiality and security measures.
  • We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against harm to the rights, property or safety of Google, its users or the public as required or permitted by law.

This is not unique to Google and you will find that virtually all companies that take privacy policies seriously will have provisions that inform you about their obligations to hand over personal information in these circumstances.

While Google is required to comply with many of these requests, it has taken a rather bold decision not to hide these requests from its users and, in fact, to expose these requests in an aggregated form to its users through what it calls its Transparency Report. This initiative makes sure that users know which countries make requests of Google and how Google generally responds to these requests:

Transparency Report - Government Requests

The Transparency Report also reveals how much traffic its various services receive. This data can be broken down by region too:

Transparency Report - Traffic

Online privacy is a tough challenge to meet and Google has made its share of mistakes. That said, the search giant is also at the cutting edge when it comes to giving users better information about what it does with their personal information. This latest initiative reminded me of the recent PigSpotter debate and subsequent reports how local law enforcement is dealing with the PigSpotter phenomenon – poorly. The Transparency Report seems to stand in stark contrast to efforts to clamp down on PigSpotter by, among other things, reportedly conducting illegal searches of motorists’ mobile phones for hints of their involvement in the PigSpotter phenomenon. It also stands in stark contrast to the South African government’s efforts to implement its controversial Protection of Information Bill which will likely take media freedom back at least two decades and cripple the right to freedom of expression for the sake of avoiding the embarrassment of having politicians’ failings exposed in the press.

Google’s Transparency Report is a reminder of the need for a degree of transparency and the accountability that transparency brings. It is also a reminder that companies like Google can still be required to hand over personal information to government agencies which may not share Google’s respect for your personal information (its only fair to note that my perception of Google’s respect for privacy is not universal and there are valid criticisms of Google’s handling of personal information). We can only hope that this spirit of transparency and respect for privacy visibly filters through to our government agencies and authorities.

As an aside but on a related note, take a look at this video if you are curious about Google’s approach to privacy generally. Also be sure to take a look at Google’s Privacy Centre for more information.

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

feed-icon-96x96The 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:


2.1 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.