I Do Not Agree to Your Terms
mikeash.com
mikeash.com
But Apple didn't do that. Instead their email includes language about "indemnifying Apple" from legal liability. It also includes open-ended language about "placing advertising next to or near your content...without compensation to you" in a way that might ordinarily require a license. I wonder if this language would be viewed as legally binding if Apple can demonstrate that the recipient, say, logged into News Publisher to check their settings but chose not to opt out.
On the other hand, as a practical matter, I suspect bloggers will not be lining up to sue Apple in federal court...
[By way of disclosure, I'm a founder of https://recent.io/, which is in the same space as Apple News. We plan to submit our iOS version for Apple's TestFlight beta testing program this week. Fingers crossed!]
Why not? It should be lucrative. If Apple publishes my content without a license that's a clear copyright violation. I should be able to collect up to $250,000 per incident.
Apple's on good neighbor ground (and probably good legal ground) acting as an RSS aggregator while giving people a chance to opt out.
They're on neighbor-from-hell ground in handing third parties some weird auto-invoking license for using that party's content. This is the kind of behavior I expect from teenage fan posting a song from a band they like on YouTube, except the teenager is likely to recognize they don't hold any rights and aren't in any position to dictate a license before posting it.
Content on websites is subject to copyright law. There could be mitigating Fair Use conditions to those copyright claims such as truncated news usage, educational use, criticism, parody, etc.
Web server HTTP requests generally bind the requester to the legal agreements on the site {Terms of Service, Privacy Policy, etc}, at least in terms of denial of service (so potentially less extreme).
Any violation of the "/robots.txt" by RSS readers could be considered a breach of Terms of Service (depending on the existence and content of those two documents).
I have not seen the News App and I don't know how it works, but taking copyrighted work without requesting (requesting is opt-in, not opt-out) and monetizing them with ads seems pretty risky to me.
It's possible the article author somehow made an agreement with Apple by becoming an Apple Developer / installing XCode, installing iTunes, creating an Apple account for an iOS device, etc. and didn't know it. Apple _did_ have to find his email address to email him -- typically large multinationals won't cold-email boilerplate email messages as a first point of contact since this would quickly taint their sending IPs on email block lists. I suspect there was already some sort of business relationship established.
[1] http://cyber.law.harvard.edu/rss/rss.html#licenseAndAuthorsh...
I agree the part about indemnifying Apple is a silly overreach, but this seems like a bit of an overreaction.
[1] http://edition.cnn.com/2003/TECH/internet/09/09/music.swap.s...
Sure, the tone could use a little work, as could everything written as a legal document ever, but they appear to have managed to do cover their ass in an email which (unlike standard EULAs, especially Apple's) is actually short enough to be readable. I'm not really sure this is one for HN to be up in arms about.
I have more issue with the companies that provide RSS feeds whilst simultaneously displaying terms and conditions prohibiting creating hyperlinks to their website without written permission, which is the sort of weird illogic of the legal departments of traditional publishers this dubiously-drafted message is really aimed at.
FTA: "If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim."
I guess I don't understand why you do not take issue with this line. Apple has "enrolled" him in an indemnification clause without his consent or request.
Isn't this just like saying "the views expressed here aren't endorsed by our corporation, so don't hold us responsible for the content, only the mechanism by which it is provided" ?
Again, I don't see any issue to take with the wording acknowledging the existence of a process whereby their lawyers might send me an email in the event of future complaints. There is no indemnification clause unless and until you receive that email and respond by agreeing to indemnify Apple.
Apple comes out with an Ad Blocker for Safari. Then it comes out with Apple News, which places ads next to RSS content, and doesn't compensate the author?
Come on, man. That is infinitely upsetting.
(Updated the comment to remove uncertainty now that I have a citation: https://developer.apple.com/news-publisher/)
Update: https://developer.apple.com/news-publisher/
> Monetization is made simple with iAd, Apple’s advertising platform. Earn 100% of the revenue from ads you sell, and 70% when iAd sells ads for you. iAd provides campaign management, targeting and reporting capabilities that help drive your business.
So that's very fair, they don't take a cut if you sell the adverts yourself - otherwise they take a (industry standard?) 30% cut.
https://developer.apple.com/library/prerelease/ios/documenta...
Apple pays you 70% or 100% of ad revenue if you use their Apple News Format. Apple pays you nothing if you use RSS.
How much revenue can I earn when monetizing with iAd? Keep 100% of the revenue from the ads you sell in your articles or channel, or 70% if iAd sells the ads for you. You can also earn revenue from ads sold by iAd that appear in Apple-curated topic feeds, such as Fashion or Technology.
No, they didn't. They came out with an extension API for Safari that allows extensions which block ads, amongst other things.
I suspect that whether Apple violates his copyright would come down to exactly how they implemented the system. If they pulled posts directly from his servers they would probably be ok. If they cache/host the content themselves it could get a bit murkier.
You have every right in the world to control that. It's called copyright. If you choose a license for your content that prohibits putting ads next to it, then there you go: you used your right to control that.
Not saying it's practical, or business wise, or good PR, or, ... But definitely your right.
I wish I was this clever.
Tyler Durden: Oh I get it, it's very clever.
Narrator: Thank you.
Tyler Durden: How's that working out for you?
Narrator: What?
Tyler Durden: Being clever.
Narrator: Great.
Tyler Durden: Keep it up then... Right up.
Anyway, glad you like it.
The much better way to do this would be, "We'd like to include your RSS feed in our News application, if anyone reads an article that you have provided to us we will make a one time payment to you of $X (say $250), in exchange for that payment you give us the right, in perpetuity, to continue to provide access to that article though our News application."
Basically if you're writing is bringing people to the News application they should pay for that. And once they have, they can monetize there end of it just like newspapers and magazines by putting ads on the site or adding other junk.
It sounds like they are trying to construct some novel theory[1] where if someone managed to find your blog and read it they wouldn't have paid for it, so Apple doesn't need to pay for it if they are using it to attract people to their app.
So lets look at it from an information economics perspective, the author's article derives its value from the author's artistic expression. Nobody else is going to write it just like they did, or how they did. The author "spends" that value to attract readers to the blog, and readers "pay" for that value by by exposed to advertisers who have paid the author to be on their page. So you get that?
The reader "buys" their content by agreeing to be exposed to advertising.
The author "sells" their content by providing access to their readers to advertisers.
The advertiser "buys" access to the content by paying the author when a reader interacts with the ad.
Apple is trying to step in, get the content for free, bring readers to their News App and then sell access to their readers to the Advertisers. You can see that without the Author's content there is no "value" to readers in the news app. Authors who agree to this are simply dropping money into Apple's lap.
[1] It isn't really novel people try to rip off artists by offering them 'exposure' all the time.
But I seem to recall there was something like this with book clubs, that they'd send you a piece of mail, and you had to reply to opt out. Otherwise they would start sending you books, and charging you for them.
That kind of garbage became illegal in the 1970s or thereabouts. I can't imagine that doing it via e-mail makes it any more legal.
The only leg that Apple has to stand on is that it's going to be really difficult (expensive) to sue them. I'm pretty sure that the actual law is not on their side here.
This still happens online with an X-day trial of something, fine print says to cancel or be charged $XX.XX/mo. Good luck figuring out how to cancel, though.
While I don't think the email is legally binding unless "signed" (responded to in an affirmative manner) - they could still use it to take you to court regardless over it. Many people would lack the funds needed to defend themselves so wouldn't bother trying to defend and are therefore forced into acceptance. Unless you can find a pro-gratis lawyer or a "no win, no fees" to take the case.
The extra terms are mostly to cover Apple's ass in case your content is illegal. If you get sued for your content for whatever weird, legal reason that might happen and Apple gets listed for providing access to your content through News (would that even happen?) and the case gets through and somehow Apple isn't excluded from the case (even if listed, I don't see how they would be found liable) you agree to pay for them.
Which is definitely something you don't want to do. The likelihood is small/impossibly rare or maybe even impossible. But Apple's Lawyers want to cover Apple's ass "just in case".
Outside of a few restrictive licenses - they can already display content next to ads without your permission. Mikeash would either need to properly license their blog or decline rights to Apple.
By writing his blog he has identified that he has read the e-mail. Although I don't think it's legally binding at that point (regardless if it says he agrees to it unless he opts-out), IANAL. If a lawsuit ever occurs over the use of his content and Apple is involved - attempting to prove he has read their e-mail to try and enforce the terms would mean they have read his blog to know he has read the e-mail, which means they have seen his denial of their terms. A catch-22.
Glorious!
The state of copyright. Right, Fucking, There!
Apple is providing a service with your content. A feed reader is usually controlled by the individual reading the feeds. The programs themselves usually don't aggregate or redact in any way — or enrich it with advertisement.
And if they do they are just as bad. However the email is a gem in itself.
2) The user of a content aggregation service is paying (directly via money transfer or indirectly by seeing ads) for the content selection, not only for the provision of an automated service to retrieve feeds. One could argue that the revenue the service provider creates with content selection is based on the publisher's content, the publisher therefore should get a share of it.
A content aggregation service is like someone ripping shows and then uploading them to a public website surrounded by revenue generating ads.
The difference is pretty clear from a copyright apologists standpoint.
Personally I don't see a moral problem with either of these, since neither scenario deprives the author of their data/content. No theft has taken place. I don't believe in copyright. But I suspect you, like most people, do.
By the way, in what way does anyone consent to having google ads show up in search results showing their content? Not having a robots.txt file blocking bots?
Having an RSS feed implies that you are okay with someone copying what is found in the feed and displaying it to users. Since there is no technical mechanism defined to flag allowable uses, there is presently no way for an RSS author to signal intent or add conditions like "may not be commingled with advertising."
It seems to me that Apple is just providing a heads up to the RSS author what is going to happen, and giving them the chance to opt-out ahead of time. Apple could have done this without asking.
The only weirdness is making it seem like the RSS author has accepted terms unless they respond. That was a poor choice. They should have said "this is how we will run things; to stop us from using your RSS feed, click this link."
You will be responsible for any payments that might be due to any contributors or other third parties for the creation and use of your RSS content.
Could potentially be a lot of additional trouble if they get a hold of a feed that wasn't intended to be publicly accessible.
The only thing Apple is doing differently here to many bots that have boldly gone before is sending a warning message.
That can be inferred by the fact that indemnification is a subclause of "you can resolve the issue." In other words, it would be only occur as a result of the RSS author's active and intentional actions in responding to a claim. Again, stupid wording though.
http://www.quora.com/Why-didnt-Google-put-ads-in-Google-Read...
An RSS feed is not a push. It's exactly the same as any other web page: you must pull on it to get the new content.
Sure, from the point of view of a user of an aggregator, the aggregator went out and did the work automatically. Whether it is pull or push is not obvious. But the fact remains, it is all pull.
Fair enough, though I think the semantic distinction doesn't really address where I'm confused. My two main questions being 1) does every aggregator need a site's permission to use their RSS feed, and 2) why else would you publish an RSS feed if not to make your content accessible across other platforms / sources?
An RSS feed is a pull, sure, but it seems like one is pulling content that the creator has put a "pull here" sign on.
I wrote quite a large news aggregator in the past it indexed over 200 sites every 5-10 minutes. Intially when we were doing the research for the RSS/Atom feeds, we were contacting producers of the content explaining what we were doing to see if they wanted in.
We were getting such overwhelmingly positive response from the creators that they were happy that people were actually using the RSS feeds and were interested spreading the content around that we never had anyone request to be removed or didnt ask specifically to get into the aggregator. In fact the only maintenance was when a site died or they changed their feed URL.
I'd guess personal feed reader applications are relatively clearly covered, because when you offer a feed for your users to read it is implied that they are going to use an application of some kind to read it.
Websites that just publicly reproduce all contents of an RSS feed very likely aren't (and have lost the resulting law suits, at least here in Germany)
1. Publisher implicitly offers Syndicator a license to republish his content.
2. Syndicator accepts the implicit license agreement by republishing the content.
3. Syndicator attempts to amend the implicit agreement by transmitting proposed amended terms over an unreliable channel and gain implicit acceptance by silence.
4. Publisher counters with an explicit refusal of the terms over another (more) unreliable channel not only refusing the amended terms but also rejecting the prescribed means of refusing them.
Let's say something blows up, and this ends up in court. How would it come down???
It seems obvious the terms were never agreed if either:
1. Syndicator fails to prove that Blogger ever read the email, or
2. Publisher can prove that Syndicator read his published response and yet continued to take his feed.
Obviously, the first condition is not met because Publisher said so. We can only speculate on the second. Making it to page one of Hacker News and Hacker Newsletter certainly helps Publisher argue that the second condition is met.
But what if neither condition is met? Can a syndicator lob terms over a publisher's fence and, even they are proven to be read, consider silence to constitute agreement?
I'm not a lawyer, and I have no idea how it would go. I'd guess there's some obscure case law from the '50s or something that would make or break this case.
Is Apple losing it? I can't imagine them performing a stupid fuck-up like this five years ago. This botch job just makes them look like evil bullies to everyone involved.
The one caveat to this is that he is responding to their email, showing that he has seen and read it.
IANAL - but because he provides an RSS Feed, Apple can already use it. The terms that they put forward are things they already can do with access to the RSS Feed. They are allowing creators to opt out. I don't see how Apple is in the wrong here. While the terms may seem like they are trying to take something.
>If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim.
This is covering Apple's ass in case your content receives a legal claim and Apple is included for providing access to your content. This essentially is "you agree to not shoot the messenger".
>You will be responsible for any payments that might be due to any contributors or other third parties for the creation and use of your RSS content.
If you have a featured post or pay someone to post content for you - Apple is not responsible paying for them. This is, again, just covering their own asses.
>You agree to let us use, display, store, and reproduce the content in your RSS feeds including placing advertising next to or near your content without compensation to you. Don’t worry, we will not put advertising inside your content without your permission.
They can do this anyway without your permission. The email is providing you a way to opt-out of this.
>You can remove your RSS feed whenever you want by opting out or changing your settings in News Publisher.
If you wish to remove your RSS feed from News they're letting you know how.
This is interesting. Is Apple going to actually revive RSS as a tool for reaching the masses? (As opposed to a few persistent geeks, of which I'm one but I can tell there aren't that many overall?)
Bullshit legalese aside, that sounds like a great thing.
> You agree to let us use, display, store, and reproduce the content in your RSS feeds including placing advertising next to or near your content without compensation to you. Don’t worry, we will not put advertising inside your content without your permission.
Other RSS readers display ads near your content, and Google caches RSS feeds. So unless these are unusual use cases, Apple does not need your consent here, as it's implied by creating an RSS feed.
> You confirm that you have all necessary rights to publish your RSS content, and allow Apple to use it for News as we set forth here. You will be responsible for any payments that might be due to any contributors or other third parties for the creation and use of your RSS content.
> If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim.
Apple is saying they're not responsible for any copyright issues involving your RSS feed. This is also reasonable and already assumed to be the case, so they don't need your consent here either.
Now the contentious bits.
> You can remove your RSS feed whenever you want by opting out or changing your settings in News Publisher.
> If you do not want Apple to include your RSS feeds in News, reply NO to this email and we will remove your RSS feeds.
These are just (poorly worded, thanks lawyers) opt out options. There's nothing in this 'contract' which requires your consent or legally binds you in any way beyond what the law already does. Apple is simply offering two methods of opting out, and if anything is giving you MORE control over your feed than other RSS readers do. That is, unless you feel that every RSS reader must get permission from each RSS feed they want to cache and render.
I've dealt with a lot of technology contracts as of late, and this is a storm in a teacup. If you want to go after something that's genuinely harmful, then start with those 'arbitration' clauses that are in damn near every electronics and service contract today.
(I am not a lawyer, and this is not legal advice).
The nonsense that follows would suggest that the lawyers were not involved.
I am however not saying that is the case, I am just saying the assumption is reasonable given... lawyers... reputation.
if(User-Agent == "Apple") {
showNonsenseNewsFeed();
} else {
showNewsFeed();
}
"If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim."
That does not ACTUALLY SAY "you agree to indemnify Apple." It's a conditional with a lot of preconditions but even if they were all met it obviously doesn't constitute a legal requirement. It's saying "if it happens to come up that somebody sues us, we'll help you resolve the issue, which may involve us AT THAT TIME asking you to indemnify Apple as part of some sort of agreement we haven't yet put forward."
It's a heads-up. At some point in the future IF legal exposure becomes a problem they expect that they will have a policy about it which would involve the publishers deliberately and explicitly agreeing to an ACTUAL CONTRACT in which both sides get some tangible benefit. This email is not that contract.
Maybe they don't need me to agree in the first place. But the fact that they're trying to get me to agree in this fashion is idiotic. The content of the supposed agreement is almost irrelevant.