Two things you gotta love about Robert Scoble: he’s single-handedly begun to humanize Microsoft and he blogs like a fiend. Even when he’s wrong.
Scoble’s headline, “Schwimmer pulls out of Bloglines (and Scobleizer)” is inaccurate and misleading. Martin Schwimmer has indeed asked Bloglines to stop reproducing his content, but Scoble removed Schwimmer’s RSS feed from his desktop aggregator on his own, without request from Schwimmer. In fact, Schwimmer actively invites individuals to use his RSS feed. These are two entirely different uses of Schwimmer’s content; one in compliance with Schwimmer’s content license; one in clear violation.
Schwimmer has elected to offer his online content through a Creative Commons Attribution-NoDerivs-NonCommercial license. In English, this means that Schwimmer has licensed his online work for anyone to use, copy, or distribute so long as attribution is given and that the use, copy, or distribution is noncommercial and nonderivative.
Scoble’s personal, noncommercial use of Schwimmer’s RSS feed was fully compliant with the Creative Commons license. Bloglines, according to Schwimmer, reproduced the content, surrounded it with its own frame, and removed the attribution. Presumably, Bloglines solicited advertising for its reproduction of Schwimmer’s work. Finally, Bloglines’ framing of Schwimmer’s content would be reasonably seen as a derivative work. This is clear violation of all three conditions of Schwimmer’s Creative Commons license.
In February 1997, a variety of corporate media companies filed a lawsuit against Total News, Inc. for a similar practice of framing content without permission. Here’s the key sentence from the original complaint:
“Defendants have designed a parasite Web site that republishes the news and editorial content of others’ Web sites in order to attract both advertisers and users.”
The case was subsequently settled with hypertext links being allowed (without the use of logos or other trade dress) and framing being specifically disallowed. That same year, two dental websites got into a scuffle when one framed the content of the other.
Unfortunately the courts have misinterpreted this crucial issue and have lumped linking (which should be open and free) together with framing (which should be condemned as the parasitic activity it is).
Scoble clouds the issue when he ties the issue of copyright or Creative Commons license infringement to RSS and syndication:
“The real trick here is: if you don’t want your full posts reprinted somewhere else, don’t put them into RSS. That’s one reason most commercial sites don’t include full content in their feeds.”
Most commercial sites provide only snippets in their RSS feeds so the user returns to the mothership to read the full article and maybe buy something or at least see the pretty advertisements that pay the employees salaries that allow them to create more great articles.
In an update, Scoble asks about the difference between what Bloglines is doing and what a desktop RSS aggregator like NewsGator does. The answer lies in the definition of publication and the fair use exception in copyright law. When Bloglines frames another website’s content, that’s either a republication or derivative work, depending on which lawyer you ask. In either case it’s a violation of Schwimmer’s Creative Commons license. When a user manipulates a website’s content in a desktop aggregator like NewsGator, she uses the program to strip the layout, typography, and any surrounding content (including advertisements) from the original content. Because this is for personal use it’s a non-infringing use and probably covered under the fair use exception. In fact, Schwimmer’s Creative Commons license specifically disclaims affecting fair use and other rights. The key difference here is personal vs. commercial use.
But the larger problem with framing parasites that clearly evades Scoble is information authority. In print, information authority is conferred by republishing. At Utne, when we find an article that delights us, we obtain the necessary rights and republish it in the magazine. That process enhances the information authority of the original author and publication through our wider circulation and attribution (we generally publish a thumbnail of the publication’s cover image and always provide author biography and subscription information). Online, information authority is conferred through links. When a work is republished on the web, the information authority of the original is diminished.
Lots of people like Schwimmer (and myself) rely on information authority to get work. This is important and we have to get it right.
Note: there are, unfortunately, several links in this article that diminish the information authority of the original source. I’ll cover that in a future article.
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