It would be one thing if all Apple did was send publishers email saying: "We love your writing. We plan to include your RSS feed in Apple News unless you opt-out (here's how to do it). We will respect your copyright and will only display fair use excerpts."
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!]
> I suspect bloggers will not be lining up to sue Apple in federal court...
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.
As the author states, though, having an RSS feed is arguably an implicit license for what's in it. There are arguments against that too, I suppose, but they have a lot in common with the idea that accessing a hyperlink without permission is a violation.
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.
I wonder if a similar email would work as a defense for distributin OSX on non-apple hardware... well, we sent you an email declaring the terms, and you didn't opt-out... and given you've sent similar emails with similar landmines, you obviously find this to be acceptable in practice, so...
What's the standard license or understanding regarding RSS feeds? If the site has no terms and conditions, is it assumed allowed? If so, wouldn't that go against the practice of explicit permissions used in API?
IANAL
RSS 2.0 is Attribution/Share Alike Creative Commons licensed[1]
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.
Presumably Apple has the same rights and abilities to consume and display RSS feeds (and to make money off them) as the author of any paid or ad-supported feed reader.
I agree the part about indemnifying Apple is a silly overreach, but this seems like a bit of an overreaction.
Here's what I don't understand. The music industry broadcasts its product over the airwaves, but if you dare copy and retransmit that with or without adding ads of your own, you're in for a world of hurt. So what is the difference being a blog-caster? Why exactly can't you dictate the terms of consumption every bit as much as the music industry?
You can. It just doesn't make any business sense to do so. Unless, that is, you have a literal army of lawyers lobbying the government and chasing kids[1] and their laptops down.
Look at it from the company lawyers' perspective. They've watched Google have all sorts of legal trouble with companies that objected to Googlebot picking up their news content despite the fact they could have opted out by modifying their robots file (if they didn't want to have their cake and eat it by receiving traffic from Google indexing their headlines whilst suing Google for having the temerity to index their headlines...)
So even though Apple are going after a market where a presumption of "right to excerpt" is even less of a grey area since RSS's raison d'être is to allow third parties to syndicate site-owner controlled excerpts of content, they're still covering their ass by publicising their intent and giving feed owners an easy avenue to opt out. Additionally they point out they might slap banner ads on the aggregation service, and you might want to sort out any copyright/legal issues in advance because they're not accepting any responsibility for it other than passing the message on. Apple aren't doing anything any other aggregations service doesn't do without publicising any opt-out process they have, and they're not imposing any burden on the author they don't already face.
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.
I'm not really sure this is one for HN to be up in arms about.
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.
There's a clause which mentions that if they receive a legal claim based on your content they'll send you another email asking you to indemnify them, which you may or may not choose to reply to in the unlikely event of it actually happening
(presumably this time, since it's more serious, it'll be opt in, and exactly like DMCA requests they'll take the content off their digital property if you don't explicitly agree to indemnify them and assert your right to publish the content)
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.
Isn't this standard though? If I link to a website's RSS feed because it is interesting, and that website then posts something illegal, wouldn't my site be indemnified?
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" ?
I couldn't disagree with your comments more. No, this isn't standard - attempting to auto-enroll someone into an indemnification clause that has no limits is not 'standard'. And saying '... don't hold us responsible' is the wrong way to look at it - instead, it's more like saying '... if you do hold us responsible, the content creator is the one who actually has to pay the charges."
I really doubt that mail from Apple is in any way legally binding, but just in case it is, send them a mail (preferably at a different email address) stating that unless they reply with "NO", they agree to pay you $10,000 per month for including your feed in their news.
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?
> 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.
How does that square with "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."?
Honestly no idea. I'd imagine that's just in case they change their mind? The email itself was very poorly thought through (and is honestly quite arrogant).
It seems common for big companies to put things in their legal agreements that are stupid and unfair and are never intended to actually be used. I don't know why.
Because there's usually no downside? The same reason people put those goofy "this message is for the intended recipient only..." notes in their sig file. It almost certainly has no legal force ever but it doesn't hurt.
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.
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.
> I don't like the idea of showing ads next to my content in this situation, but I'm pretty sure I have no right to control that.
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.
The default "license" with copyright is basically "all rights reserved". Whenever you start copying or distributing someone else's material without permission, you'd better be pretty confident in a fair use exemption or some other legal argument.
Brilliant response. They send him a letter declaring a legal contract on his rss feed unless he specifically declines, he declines via rss feed- which the lawyers will probably not read.
The terms, as stated, are ridiculous. If you write an article that gets picked up for the NY Times, they pay you for it. If you write an article for a magazine, they pay you for it. Once they do, and you've granted them a partial copyright (in this case most likely second serial rights) then every time they pull an article to include in their "news" they should pay the author.
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.
Are you referring also to Columbia House and BMG in the 90s? Sign up, get seven CDs for a buck, then you forget to cancel and they send you "A Barry Manilow and Kenny G Christmas" for $18 plus S&H.
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.
The key phrase here is sign up. I can't just send you an unsolicited text message subscribing you to Cat Facts (only $29.99/month!) unless you follow my intricate opt-out scheme.
Yes, this is what I remember my parents getting really mad about as a teenager. This was one of the first times in my life I thought to myself "People do this kind of thing to other people? WTF humans."
IANAL but I can't see how not replying to their email could possibly bind the publisher to anything. In effect Apple is using the content absent any agreement, and simply trusting that most people will be thrilled and agree out of hand.
The legal system is a bit flawed in this regard. Biased towards "strongarmers" with deep enough pockets to hold a lawsuit.
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.
It's funny how they don't even give a damn about your copyright. If you did this with Apples content you would get shit left and right, but since it's Apple doing it to you this time they can just assume your consent by implication.
I wonder what Apple would do if we all sent them an email saying we'll republish their content alongside our own advertising unless they send us a personal letter requesting otherwise. Presumably, they'd play ball - same rules for all, right?
You do understand that the Apple News app is a content aggregation service and not a feed reader, right?
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.
I'm having a hard time seeing a moral or legal difference between a feed reader that aggregates content from a bunch of feeds and a content aggregation service that aggregates content from a bunch of different feeds.
1) The process of content selection shifts from the user to the service provider, liability for copyright infringement also shifts because now they have influence over and responsibility for the content selection process.
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 feed reader is like a TiVo someone uses to backup shows from the cable television service they have license to use, so that they can personally watch those shows.
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.
Are you really relativizing the fact that Apple is aɡgregating full RSS content and has the confidence to send unsolicited email to contrive implied consent to the point of comparing it with Google putting ads next to small snippets of search results Apple consented to (albeit also just implied)?
No, I'm just pointing out the sticking ads next to content from other people without paying them is a huge part of Google's business model.
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?
I'm not seeing a problem here. There is tons of precedent for taking a RSS feed and displaying advertising next to it. Google Reader did it. NetNewsWire did it.
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."
Putting out a RSS feed does by no means imply consent to third-party use.
The same way like putting out pictures doesn't mean everybody can use them. Christ!
Because they make it very much sound like they derive obligations of the publisher from it. Which as far as I know other aggregators haven't done without proper sign up.
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.
If you must create a convenient channel to disseminate material that leaves you commercially exposed when it actually does get shared, it's probably best you don't make it visible to web crawlers.
The only thing Apple is doing differently here to many bots that have boldly gone before is sending a warning message.
Pretty sure that actually says "if someone makes a claim against your feed, we'll let you know. If you say the claim is bs and indemnify us, we'll keep republishing."
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.
Putting that in an unsolicited email is insane. If someone has an actual copy of that email, with headers, please post it somewhere. Send a copy to the EFF. Send copies to law professors.
Honest question here: if you're pushing your content out via an RSS feed, does every RSS aggregator have to get permission to use it in their aggregation? How does that work with the thousands of other RSS aggregators?
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)
I feel that by enabling/creating an RSS feed for your content you are implicitly allowing people to use the content in the RSS feed as they see fit. You may put a license of some type on it, for various free use type licenses or whatever, but you get the point. If there isn't a license on the site or in the feed stating how the content can be used, people are going to assume they can aggregate it how they see fit.
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.
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.
> 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.
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.
This is fun. I mean it's fun to ponder the legalities. Let's try to be explicit about what has happened here:
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.
This is evil strong-arm practise. Apple is obviously counting on the odds of publishers not being able to sue them over this patent abuse. All you could achieve is probably some form of cease & desist, but no damage payments (IANAL).
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.
In all the WWDC hype I didn't actually hear about Apple News.
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.
Does the RSS spec even include the ability to include machine-readable terms/licencing in a feed? Given its source (and the gentler world in which it and Atom were born) I'm guessing not, but it seems like a big omission.
> 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.
Some lawyers. I know more than a few lawyers who aren't — or at least don't continually make the choice to profit off this kind of — clownshoes bullshit.
It would be enough to just reply "NO" to their e-mail. The problem isn't getting out of their system, but just how they're trying to do business at all here.
I'm sensing poor reading skills. This seems to be the offending bit:
"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.
The entire thing is offending. They sent me a bunch of terms which I'm expected to implicitly "agree" to unless I explicitly opt out. As I say in the title, I do not agree to the terms.
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.
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!]