Copyfight on Technorati!

I’m really tempted to just do a search-and-replace on my Copyfight on Copyfight! post, replacing Copyfight with Technorati, but I guess I should write it again, for a new year.

I missed this in my first pass through Shelley’s post about bad metadata for Creative Commons licenses, but luckily she nudged me in a comment. At the bottom of every Technorati page is a link to the Creative Commons by-nc license, and lest you think it’s just a link, there’s also a rel="license" attribute on the link. I suppose it’s debatable exactly what that licenses, since you can’t actually license things when you don’t control the copyright, but I don’t think there’s any useful way of interpreting an unqualified statement of licensing in an HTML page other than as saying that everything which makes up that HTML page, text, markup, CSS, included JavaScript, the whole thing, is what’s being licensed. If they don’t mean that you can republish the whole page, or any part of it as a derivative work, then they have misstated their license.

The license is a rather strange thing on most of their pages, where nearly all of the content isn’t theirs to license: the tag page Shelley pointed out includes two of her pictures from Flickr, both of which make it quite clear that they are “all rights reserved” (though, perhaps, not clear enough on the “small” page), as well as fair use excerpts from weblog posts, and rather more questionable links from Furl and del.icio.us. I don’t see any sign of a TOS at del.icio.us, but I also don’t see anything in Furl’s TOS where you grant them a transferrable license, to not only display your content but also to give others the right to display it, much less to relicense it under new terms. Fair use is a bit tricky and undefined for “three to five words and a link,” especially when the three to five words are quite often taken from someone else’s title, but even if I felt good about republishing Furl content, I sure wouldn’t feel good about relicensing it to others. The whole situation gets even more touchy when you notice that Technorati is displaying ads, and thus using that content commercially.

But that’s not the copyfight: the good stuff comes when you look at Technorati’s own Terms Of Service. First, scroll to the bottom of the page, and note the Creative Commons license, saying you may republish that page in its entirety, or create a derivative work from it, as long as you give them attribution and don’t use it commercially. Then, scroll up to section 9, which says

Except as specifically provided herein, no Online Materials may be copied, reproduced, republished, downloaded, posted, transmitted, or distributed in any way, or otherwise used for any purpose, without the prior written permission of their respective owners.

I’d like to meet the lawyer, much less the judge, who would argue that a link at the bottom of the page, even with a rel="license" attribute, constitutes specifically provided herein, particularly when the TOS specifically disclaims all linked content with

Technorati may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Technorati has no control over such sites and resources, you acknowledge and agree that Technorati is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, accuracy, quality, advertising, products, or other materials on or available from such sites or resources.

So, the bottom line is that all of Technorati’s site is available under a Creative Commons license, except that nearly all of the content isn’t theirs to license, and anything that is you are expressly prohibited from copying, reproducing, or republishing, and although they link to the license, they disclaim any connection with anything they link to. So, what the hell does that license actually mean, other than “we like the idea of the Creative Commons”? Copyfight!

9 Comments

Comment by Aristotle #
2005-03-31 10:22:21

Sorry for being noise, but I gotta say: comedy gold.

 
Comment by Niall Kennedy #
2005-03-31 16:00:30

There is no copyright element to apply to parts of a feed (item or entry) in RSS 2.0 or Atom 0.3, Flickr’s heaviest widest distribution methods. Example RSS and Atom 0.3.

Atom 1.0 includes a per-entry declaration of copyright.

Flickr does have the photo getInfo call to get permissions for a photo display and shows a license of 0 when all rights are reserved.

Polling the copyright status of every thumbnail for every tag represented in a feed is a lot of work.

So that’s the technical side of things. Whether it is within legal boundaries to display a thumbnail image of a work with link attribution in Technorati or another aggregator such as Bloglines is a bigger question.

There is the question of the fair use exemption in the Copyright Act. In this case the amount and substantiality of the portion used is a small thumbnail and the effect of the use upon the photograph’s market value is beneficial, encouraging direct interaction with the author.

I am not qualified to go into the legal details but I have discussed the fair rights issues of RSS aggregation with smart legal minds and I think the issue will keep coming up as more companies make money off of the content of their user community.

Thanks for poking around and noticing these details! What would you like to see instead?

Comment by Phil Ringnalda #
2005-03-31 20:42:08

Aye, what to do, that’s always the rub. There’s a reason why I mostly stick to unconstructive criticism.

Two separate problems: can you really legally do what you do, and what can you CC license, and how should you do that.

The first really isn’t my problem, or my interest. I suspect, since you’re doing pretty much the same sort of things as other search engines with many more lawyers, you’re probably okay. Not that depending on the lawyers of others is a sure thing, since sometimes their existence and reputation is the only thing keeping their keepers from being sued. I doubt that anyone will object to having their bookmark-link-text republished, the posts are quite safe excerpts, the thumbnail images feel fairly moderately safe (though the one featured from the ”small” size, rather than the ”thumbnail” size, worries me a bit). It’s not a sure-win, show up in court and you’ll get costs awarded to you on your first motion sort of republishing business, but in my non-lawyerly way, none of it worries me too much.

The appearance of relicensing is a different matter. For what seems like years, I’ve been saying that I think the best way to apply a CC license to a web site, when what you really mean is only parts of a web site, is to link to page that explains exactly what you are and aren’t licensing, rather than just throwing in a link to the license. Now that Yahoo! has apparently decided that ”a link’s as good as a license” that’s not so useful. If you have pages that are purely your own content, like maybe the grotesque Top 100, that you want others to be able to republish, I’d say go ahead with them on a manual, per-page basis, including both a link to the license at cc.org and also a link to a terms page, which explains precisely what you are licensing. But putting a license link on pages that are mostly not yours to license? Bad idea. Even if you were carefully determining the license of each bit of content, and including RDF that precisely described each separate license, bad idea. If the license metadata is available and detectable to you, it should also be available and detectable directly to others, and having your separate, secondhand, non-authoritative statements about its license just muddies the waters.

And definately rewrite the TOS: not only is it not true that I may not copy or reproduce if you are also CC licensing some of it, it’s also not true if you are republishing someone else’s content. I’m (not a lawyer) pretty sure that you can’t claim copyright on your fair-use republished material, other than maybe the collective work arrangement as a whole, much less that far-beyond-copyright claim that I can’t even do fair-use republishing of content with a Creative Commons license that you fair-used without written permission from the owner. That may be a standard clause in online republishers’ terms, but it’s still wrong and senseless: either what you publish is copyrighted, and thus I have exactly the rights copyright gives me, or it’s not copyrighted by you, in which case I have exactly the rights that copyright plus any licensing the actual owner has done give me, and you don’t even enter the picture.

 
 
Comment by Shelley #
2005-03-31 17:09:54

Wow, Phil. You got a response from Technorati directly. This is the second time this week I’ve gotten the cold shoulder from company people.

Do you think it’s because I have bigger tits than you? Or (lowering thought) maybe mine are smaller.

I know — it’s because you yelled out copyfight!

Comment by Phil Ringnalda #
2005-03-31 19:42:58

I compared our cosmos cup sizes when you left your unmentionables out the other week, and yours are much bigger. Though perhaps, perhaps… mine might be more shapely. And as I’ve been told numerous times, it’s not the size, it’s what you do with them. Told over and over. In a condescending tone.

Other than the obvious (Niall reads me and not you, nyaah nyaah), there’s the secret of only savaging one of your friends at a time. I try to pick one, sink my teeth into his ankle until I feel bone, and then just sit there grinding my teeth, never letting up, until he hollers. Or thumps my head with a two-by-four, when it’s Anil. I was quite serious about saying that I just plain missed the Technorati aspects in your post first time through, because all my attention was focussed on Creative Commons, waiting to see blood and dripping gore there. I tell myself I’m a good and careful reader, but the truth is I’ve massively overextended myself, to the point where on really bad days I even skim the ones I love.

 
 
Comment by Shelley #
2005-03-31 20:24:45

Damn, that’s twice I lost a comment by forgetting to hit post after the preview.

Well if Niall reads you than Dave S. read me–so neener, neener. Teach you to bring up unmentionables, which a gentleman would never do.

But to respond to something Niall said, replicating the photo in the page was appropriate, as this is implicit with Flickr. It’s attaching a CC license to the contents of the page, including the photo, that is questionable.

I did rather expect, though, more passion/discussion/defense from the pro-CC folks. But it’s the old thing, and we’re on the to the new thing.

InfoCards!

More shapely, eh, Phil? Well, it is true — when links get old, they tend to lose their shape. Gravity, you know dear boy. Gravity. It’s sad.

Comment by Phil Ringnalda #
2005-03-31 20:49:28

Erm, dangerous talk there. I don’t like the sound of things being implicit, whether it’s ”you published an RSS feed, so I can do anything whatsoever with it” or ”you published it on Flickr (with an explicit ”all rights reserved”) so there’s an implicit agreement that’s not in their TOS that anyone who wants to can republish it.” Either it’s legal because anyone can republish a thumbnail of any photo from anywhere as fair use, or it’s only legal because I missed seeing the part in Flickr’s terms where it says that you are transferring all rights to them, or giving them a transferrable license, or some other thing that I really doubt I missed.

Comment by Shelley #
2005-03-31 21:35:48

No, I based this assumption on the API and the click to download the image link.

Probably my mistake.

Comment by Phil Ringnalda #
2005-03-31 21:50:45

Or possibly Flickr’s mistake. I did see that ”click to download this image that we just told you was all rights reserved on the previous page, though we aren’t repeating that here like we would if it was under a CC license,” but I sort of thought it was a bit of unpolish, failing to properly transition between the presentation of Free images and restricted images, or maybe that the primary purpose was to share images with the ’rents, whose first question will be ”how do I save it, so I can print it out?” Truth is, I’ve pretty much ignored Flickr, since I’m a bad photographer who rarely wants to share pictures online, and who has a perfectly serviceable blog when he does, so I don’t know bugs from features with them. I signed up a while back, but I just uploaded my first photo just to see what their RDF looked like this week.

It just doesn’t seem reasonable to me that they would say ”you can choose whether to license your photo for republication, or to retain all rights, but there’s still a wink-and-a-nudge assumed license to copy and reuse in any way anything that’s on Flickr.” Sure, they make the same links and API calls available for everything, but then browsers have a context menu item to save images irrespective of their license, too.

 
 
 
 
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