phil ringnalda

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!