Cory Doctorow on the BBC RSS license

1. Cory Doctorow May 12, 2005 at 1:35pm

   “there is very little content on the Internet which doesn’t have a license associated with it (be it explicitly stated, implied or derived in some form).”

   Yes — there are licenses that grant rights beyond those that accrue to the public under copyright law and copynorms. That misses the point: a “license” that claws back public rights in copyright, or copynorms, is unenforceable, does not consitute an agreement, and is invalid. For example, the unlimited right to link to a web-page is the law nearly everywhere (Denmark excepted) and a “license” or “Terms of Use” on a website that takes this right away are not enforceable. Visiting your webpage creates no agreement between me and you to waive my right to link to your site, even though you may say otherwise.

   There was a time when copyright maximalists (notably Bruce Lehmann, who represented large instutional rightsholders at the 1995 NII hearings on the demilitarization/privitisation of the Internet) argued that every single copy, even a transitory copy in RAM, required a license. This suggestion was never placed in a statute, and no one ever tried to litigate it: because the copynorm by which unauthorized transitory copies are lawful were so widespread, it would have been risable to ask a court to restrict them.

   “those “terms of service” he’s been ignoring often are the very license by which you are allowed read a given webpage. “

   Not true at all. As I note above: you can add terms of service to your web-page by which I waive my statutory rights to privacy, my fair use/fair dealing rights, and so forth. But the act of visiting your website does not create the binding agreement by which I waive those rights: just because you say “People who look at my website ‘agree’ to let me kick them in the teeth,” doesn’t make it so.

   “‘Downloading pages’, ‘viewing source’, ‘caching pages’, ‘blocking popups and images’… These are all passive ways of consuming content in which the data isn’t changed or redistributed.”

   Again, this isn’t true. Ask an advertising supported website if removing ads and popups is “passive.” Or running greasemonkey scripts. Or Babelfishing pages into other languages. Or proxying them through a system that thins out the html for mobile phones. Or running the Wikiproxy on BBC News. All in the implied license granted by the mere act of publishing a document on the Web.

   This is the crux of my argument. There are categories of use that require copying bu that are so obvious and ubiquitous that we don’t even think of them as copying. You *can’t* load a page in your browser without making numerous copies of it. Because there is an implied license to make those copies by the act of publishing the document on the Web, we don’t even think of this as copying. It is an enormous blind-spot, invisible by its ubiquity.

   RSS *was invented for syndication and aggregation*. Every public RSS feed published to date has been syndicated, aggregated, indexed, scraped, transformed, and so forth — just as Web pages have been downloaded, cached, indexed, copied, munged and rewritten on the client side and on the server side.

   If your RSS feed isn’t FOR aggregating, then don’t publish it, or put it behind a regwall that contains an *actual* agreement (not an “agreement” in the “you agree to let me kick you in the teeth by looking at this webpage which doesn’t even include the agreement to let me kick you in the teeth”).

   Finally, as to whether I put my money where my mouth is with BB’s RSS: Boing Boing’s RSS is mirrored by DOZENS of commercial entities who put their own ads on it (like Bloglines) or charge money to access it (like LiveJournal). You don’t hear us complaining.
2. Cory Doctorow May 12, 2005 at 2:34pm

   Regarding BB’s CC license: you are missing this part of the CC license:

   “2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.”

   IOW: you can do all the stuff the law lets you do. In addition to that, here’s some OTHER stuff you can do, provided you do it noncommercially.

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