8
Feb/05

Dear Jeeves: Please Offer A Non-Commercial Opt-Out For Bloggers


News.com is reporting that Ask Jeeves will buy Bloglines.  There is a paragraph on my request to ask Bloglines to remove my feed (if you’re coming here from the news.com article after reading the original post, this subsequent post may address some of your reactions).

The article speculates that the attraction of buying an aggregator is the potential for ‘expanding paid links to RSS Feeds and Blogs.’  However, an Ask Jeeves officer is quoted as saying that the company has no immediate plans to sell advertising, and that various models, including subscriptions, are being considered.  The  Bloglines press release mentions enhanced search of blog content using Jeeves’ Teoma engine.

The purchase offers an opportunity to advance the debate regarding third-party commercial use of RSS Feeds. 

To answer a specific question posed to me recently:  the sponsored links on a Google or Technorati results page are placed on, and clearly originate with, their ‘value-add’ pages, which make lawful fair-use of the underlying content.  Advertising by an aggregator on a portal page or other ‘specific-blog neutral’ page would, imho, also, not raise copyright or trademark concerns.

However, in my view, placing contextual advertising adjacent to a full-text copy of a blog page raises both copyright and trademark concerns, as does the commercial use of subscriber information. 

As an aside, I’m not as concerned by the idea of an aggregator using a subscription model – like the license fee for news reader software, the fee is clearly tied to the value-add of the aggregator service, and is not a commercial use of any particular blog.

Whether use such as contextual advertising or subscriber-list mining exceeds any implied license created by the making available of a RSS feed is, as Denise points out, not yet the subject of firm case law (although in my view the implied license extends only to the reproduction of the feed and not to commercial use).   I think that the copyright owner’s explicit prohibition of such use (in the form of, for example, a NCC license) removes most of that ambiguity – it exceeds the explicit license.

(Again I want to point out that in my specific instance, Bloglines immediately complied with my request to remove the feed – although I think its “That blog does not exist” error message is funny but a little heavy handed).

I therefore propose the following to Ask Jeeves and other full-text aggregators. 

Bearing in mind that there will likely be only a few full text web-based aggregators in the future, making complete waiver of copyright a pre-condition for using RSS, is a bit much.  Offer a choice to bloggers: if they elect a NCC (or NCC-type) option, you would include their feed without contextual advertising or subscriber-list mining.

Again, it’s my guess that the numbers that will pursue this option will be small enough that your model will still work.