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June 01, 2008

Shouldn't You Have To Ask Permission If You Want To Take A Blog's Feed For Your Profit?

(Update:  Another interesting perspective published two weeks ago by Larry Borsato at PC World and the Industry Standard.)

This has been troubling me for a while.  And it just may go over like a lead balloon for some of you. We all work really hard on creating quality blog content, building our readership, creating trust in order to sell our legal services.  We publish it on our blogs, some under a creative commons license.  But when we started publishing did we automatically implicitly give any one person or company the right to gather our blog's feed and present our feeds in an aggregated format so they may profit off our reputation and work....without our permission?

When the ABA Journal On Line went live with their blawg directory, if you chose to submit your blawg and they accepted, you gave them permission to publish your feed. And they aggregate for profit. That's perfectly acceptable.  I have submitted my blawg to several directories and sites like Feedburner and Technorati who profit from the collective body of feeds. This was my choice.  And I actively consented.

When I suggested to Guy Kawasaki he create a LawAlltops I gave my permission for my site to be used on his aggregator.  Will their come a time he may monetize the site?  I strongly believe that's his plan.  But, again, he has my permission.

What I have noticed lately is others looking to take my feed without my permission for their own profit.  One could rationalize that it's free publicity.  But since when did I lose my authority to publicize my work the way I choose to and with full knowledge of where it will be fed? 

Remember, these are not other bloggers writing their own blog post on their own blog and referencing my blog post (even with select paragraphs copied) then providing links back to my blog. Nor am I referencing those who are listing my blog in their blog roll.  I'm also not discussing traditional RSS for the individual reader who is simply looking for the convenience of having the blogs they like collected together for easy reading. There is no profit motive for the individual who creates their own aggregation, just convenience. 

The for-profit sites I am talking about are those sites created by an individual/company who wants to funnel readers to their site on a grand scale, to encourage them to go to their site exclusively to find your blog post and mine based upon the concept of convenience to the reader.  Then the owners monetize the site. They profit by selling advertising and/or they market their own products and services.  Just by being part of the aggregation on this site there may be implied consent and endorsement of whatever the product or service is being advertised or sold.  And should the aggregation be part of a larger company, the company could be sold to yet another.

Is aggregation without permission any different than the content scraper who lifts your post without permission, while still giving you attribution, so they can draw away your traffic and promote their 'ad words' or services or products for their own profit?  If the SEO for the aggregator's site is or becomes great, will it replace your site as the first site in a search for your name or content and draw your intended traffic there?  Is it really fair?  It may or may not be technically lawful but what better way to encourage endorsement from those whose feeds you seek then by asking permission.

Should bloggers state clearly on their blog they do not give any third party the right to take their blog's RSS feed for personal profit without the owner's express permission? I know I do in the creative commons license I post on every page of this blog.

Maybe I'd be OK if I was asked and I might even enjoy the publicity depending upon the quality and mission of the aggregator.  And I don't really even begrudge them looking to turn a profit for their work if they are producing something of value. But I do have a problem with someone just taking.  Just ask me.  I don't bite....well, not often. 

Anyone have any thoughts on this?  I'm really just looking for discussion as to whether I'm off base, have missed something or have hit the mark for any or many of you.

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Comments

Adrian

You are off base unless there is a misrepresentation about the source of the work. The purpose of a news feed is to allow the content to be widely shared. If you want control over how your content is used, turn off your feed.

Grant D. Griffiths

Great post Susan and really on point with some discussions I have seen lately on blogs and even twitter.

One problem is how do we police. And should we be concerned with RSS feed users when they do bring us links. At the same time and as you point out, how hard would it be for these "news aggregators to ask for our permission to use our feeds. I have yet to deny them permission when they ask.

Again, great post and thanks for getting the conversation started on this interesting topic.

Edward Adams

You raise an interesting issue, but I think it turns not on whether the site that does the taking is for profit or non-profit, but on how much of your content they take.

If they take a de minimis amount, such as your headlines and a few words from the start of each of your entries, they do you no harm and they provide a service to their users. And there's no need to ask each site for its permission, in my view.

That's the model Google and other search sites follow, and what we adopted at the ABA Journal, where I'm the editor and publisher.

Kevin OKeefe

Your feed and excerpt are fair use under most circumstances.

Look at Google indexing websites and blogs. Google makes billions of dollars from doing so. Have you given permission to Google to index your content and display titles and excerpts?

Susan Cartier Liebel

@Adrian, I'm not sure your observation is completely accurate or your solution appropriate. My site from day one has included a copyright statement under a Creative Commons Attribution non-commercial no derivatives work license 3.0. It says in part:

"Under the terms of that license, you can copy or republish any post, with the exception of those catergorized as "Connecticut Law Tribune," (see below) for any non-commercial purpose, so long as you attribute the post to this blog. However, you are not authorized to make any commercial use of this blog without first obtaining express written permission from Susan Cartier Liebel. Please note that "commercial use" includes repackaging, reformatting, redistributing or repurposing the RSS feed for commercial purposes."

The world does not have the right to repurpose my feed for their profit..period. Unless I give permission.

I do not have to shut off my feed. And others cannot take my feed for profit WITHOUT PERMISSION.

I have encouraged bloggers to put the Creative Commons License on their site precisely for this purpose, even when they said they didn't care. Because one day they will care. The internet is still barely a toddler.

And...you may never know what you choose to do with your intellectual assets one day. Preserve your rights. You can always say, 'Yes.' And how hard would it be for the aggregator to ask, anyway?

Susan Cartier Liebel

Edward, the ABA, as I recall, asks you to contribute your blawg. This proactive action by the blog author is consent. The ABA Journal Online does that perfectly with its creation of the blawg directory. It has grown organically and positively on a permission basis. This is a great model. It just takes a little longer as word spreads.

And for any other venture you do, simply ask those who want to participate in your new search venture the same way you did when you started your Blawg Directory. There is nothing wrong with asking permission and permission comes in many forms.

I'll certainly be there :-)

Edward Wiest

I just read the CC license on this page. It's too long and too much small print (even for an audience of lawyers!) but anyone who takes the time to read it would know that _unauthorized_ aggregation--even headline aggregation--on a site to be monetized is a no go.

The real issue isn't so much a blog author's right to control content--even content being given away-- but the high cost (time and money) of enforcing the rights the author possesses and chooses to retain.

Susan Cartier Liebel

Kevin,

Do you 'legally' have the right under fair use? Not my area of law. And I'm sure I have no influence on Google. However, I derive such significant benefit from Google's free services which goes well beyond them indexing my blog.

What I do know is the court of public opinion plays an important role in the success of aggregators. Why 'take' because technically you think you may be able to and do so creating bad will and negative publicity (think AVVO) when you can follow the permission based model used by so many successfully including the ABA Blawg Directory.
Then you create evangelists for your products and services.

Adrian

The discussion would be aided if we could see how your feed was being used for profit. I'm sympathetic to the possibility that it can be misused, but generally it is customary to expect news feeds to be widely shared. You as the publisher have the choice of how much content to put in that feed, so my next suggestion would be to put only an excerpt of your text into the feed. The practical issue is your control of your content; the legal issue does implicate the evolving customs of Internet publishing.

I would also suggest taking the news feeds out of your headers. In Firefox, I can access your feeds through a button at the top of the browser. You should have your feed links available right next to your copyright notice (which isn't carried in your feed) if you want people to read that. Another suggestion is to set up a footer in your news feed with a link to your copyright notice.

David Carson

Fair use > copyright. Asking permission is polite, but unnecessary.

I agree with Edward that "how much of your content they take" is the critical issue.

Grant D. Griffiths

Kevin --

Lets take for example a conversation many of us have from time to time about the proper platform to put a law blog on. Haven’t you, yourself said in the past that Blogger™ is not a proper platform to put a law blog on. Why, because of the fact you have no control over what kind of site might be linking to your blog or what site Blogger might be linking you out to. Your readers might end up on a porn site. Sites you certainly don't want your law practice associated with. That is why you and Lexblog (http://www.lexblog.com/) use Moveable Type and we at G2 Web Media (http://g2webmedia.com) use Wordpress as our respective platforms of choice.

Isn't Susan and others raising the same kind of objections to monetized aggregators. Using their feeds without permission and telling them NO, you can not use my feeds under those “monetized” circumstances, isn't that fair. Granted I am not a copyright law lawyer. But, as Susan has pointed out, under the Creative Commons Attribution, "Under the terms of that license, you can copy or republish any post, with the exception of those catergorized as "Connecticut Law Tribune," (see below) for any non-commercial purpose, so long as you attribute the post to this blog.”

That language is neither arbitrary nor capricious. It is quite clear that it can be used for non-commercial purpose. And comparing monetized aggregators to Google is like comparing apples to oranges. Google is more of a library, indexing blogs and websites. Making them available for searchers, just as someone might do looking for a book in a library.

Those aggregators who are using my feeds to index legal blogs, such as Justia and the ABA’s Blawg index, both asked for me to submit my blog to their site. By submitting my blog, I was in effect giving my permission.

It would not be hard to ask for permission. In fact, both Lexblog and G2 Web Media could include such an opt-in or opt-out clause in our contracts if we wanted to aggregate our client’s blog post into some form of monetized or non-monetized news aggregator.

In addition, it would be simple to email the blogs we wanted to include in any such endeavor to get their permission. Not only would it be proper under the Creative Commons Attribution. It would be the right thing to do.

Susan Cartier Liebel

I think the ABA set a model for proper etiquette, great PR and permission-based aggregation.

Bloggers don't lose all control over their content or feeds under any doctrine that would make sense and sheer muscle should not dictate, Dave.

This is an evolving medium and a new frontier which bloggers will shape into the future.

@Adrian - while I exercise my right to blog, as do others, we do not hold ourselves out as journalists in the sense you describe my feed as a 'newsfeed'like the NYT or CNN.

But this isn't about me. This is about all bloggers and what rights they have to their content and feeds as more and more individuals/companies look to 'aggregate' and profit off of our work without our permission.

On a practical level, it's just smarter and not all that hard to just ask.

Again, this is not my area of law so I do not know the ins and outs, but at some point common sense will and must prevail.

Kevin OKeefe

I could be proven wrong but I do not recall the ABA nor Justia asking for permission to aggregate my blog feed.

Susan Cartier Liebel

Kevin, I KNOW I submitted my blogs to Justia and ABA Blawg Directory. And if you go to ABA's site they show you how to submit your blog for approval...and they don't take everyone who submits.

Kevin OKeefe

The more I think about this, the more I think how crazy it is to say others cannot use feeds.

In the last couple weeks, my blog post titles and excerpts of same have been displayed at the New York Times, the WSJ, Newsweek, LinkedIn, Law.com, Facebook and more. All of those entities are doing this to make money. Do they need to ask my permission before doing that?

If a blogger who is making revenue directly from their blog via advertising or by showcasing their knowledge takes a couple paragraph excerpt of one of my blog posts for their benefit, are they supposed to ask for my permission before doing so?

What's driving this discussion? Where are folks having problems with sites aggregating their feeds? What sites?

Susan Cartier Liebel

Kevin,

Do you not understand what we are talking about? Because we are certainly not talking about using links or excerpts they way you have just described and have said this in the original post and in follow-up comments.

Please reread.

Anon

This discussion is in its infancy. Blog content which authors put a lot of time and energy into are intellectual assets and potential revenue sources for the author now and for the future.

Ownership is implied through creative works doctrine and permission is needed to grab someone else's RSS to exploit the content.

The reason the 'big boys' are scared is because those who monetize their sites grabbing others feeds (not links or excerpts on a periodict and relevant basis, but stream 24/7 to be one stop shopping for readers and potential customers) rely on this and the bloggers' ignorance.

The old adage, better to say I'm sorry (after protracted litigation) than to ask permission, has been the business model in this new frontier.

Too much discussion can be threatening to them as well as taking a stand that 'you don't own your RSS.'

Susan, you are right but the law hasn't caught up yet.

You own your work and you didn't relinquish permission by publishing it on YOUR blog. Those who grab it for profit without asking or having a permission based model in place for you to consent are just capitalizing on lack of clarity on these matters.

And for those of you pouring your heart and soul out there into your blogs, put the creative commons license on it. You never know when you may want to package it into a book, How-To series or monetize your site. Giving it away under the guise of 'free publicity' is a short-sighted mistake unless it makes sense for you to do so.

Anon

Oh, thanks for the update link to Borsato who links to Scoble. Great comments by Tony Hung and others.

Scoble's just wrong on this and one commenter tells him he writes nothing of intellectual asset value like many other bloggers so he's.

What's funnier? He recently ranted someone removed THEIR friendfeed stream which included one of HIS comments and he questioned who owned the comment!LMAO

Susan Cartier Liebel

@Anon, I totally agree with you. We are both talking about aggregators who stream your headlines/content 24/7 and the collection of these streaming headers is what these aggregators are 'selling' as convenience and then monetizing their site off of the collective body of streaming blog feeds and profiting.

Don't take feeds without asking permission first.

I agree with Tony Hung...it is our permission to give and being on the internet does not take away our rights.

This is nothing like Google (which Grant analogizes well to a library.) And nothing like proactive consent sites like Facebook or LinkedIn and nothing like periodical links/excerpts with attribution from a news agency like WSJ. Nor is it the same as a non-commercial fellow blogger streaming your feed in her side bar w/your consent.

Bottom line: Actively protect what is yours from others who want to take your intellectual assets without your permission. The creative commons license is a great place to start.

And don't get caught up in the 'free publicity' aspect of it, either. Select who you give permission to carefully.

Toby

Susan - great convo. It's an on-going technology challenge that will continue as long as anyone can grab an RSS feed.

My 2 cents .. take my post titles, take excerpts from my posts but please do not take full feeds. Diva Marketing's posts are written to be "borrowed" with credit/link back. I consider these "teases" that if there is interest will lead new readers to my blog. However, what really irks me is the spam blogs that pull full content and there is not a thing we can do to stop that from happening. Or is there? If you've found a way to stop those please let me know!

Susan Cartier Liebel

Hi Toby, My cousin is in Hot-lanta as we speak, checking out property!

See, you make my point. You are giving permission. You may have even said this on your site (if you haven't limited the scope of what is acceptable, you should!)

But doesn't this remain your right? And those who just grab our streaming feeds with excerpts for their own profit should ask...we may not want to be associated with that aggregation site and the advertisers on it or the products and services be promoted by the aggregator and the endorsement by being their is implied.

What say you?

Gordon Firemark

I think this is going to become a larger issue. The false impression of an endorsement is a real problem, and (in addition to the obvious copyright claims, might be remedied with a Lanham Act (unfair competition), or state law unfair business practices claim.

Good post!

Susan Cartier Liebel

Gordon, I was hoping you would provide some expertise on this matter. Thanks for joining the conversation.

Toby

Susan - Guess I need a good attorney ;-) Yes, I agree it should remain the right of the author. Since enforcement seems near impossible what do the smart people of your community suggest?

Let me know if you come south to visit your cousin!

Susan Cartier Liebel

Thank you to all who e-mailed and told me you have now added the Creative Commons License to your site.

A good point was brought up by @Ed Wiest - it's all about your ability to enforce...but that's not really the thrust. By having the CC License on your site you have proof you have always sought to retain your rights for anything you publish and for anything else you may choose to do with your content or feed.

Keep that in mind, too.

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