Riparian Rights

Summary:There's been a torrent of discussion about Dave Winer's introduction of a new way to bring news and blogs to mobile devices.  PaidContent's Staci Kramer has the best description I've seen of why the approach is unique and compelling, involving as it does: [A] river of news for mobile devices that meshes multiple RSS feeds from one news source into an easy-to-navigate stream of updated links, headlines and summaries.

There's been a torrent of discussion about Dave Winer's introduction of a new way to bring news and blogs to mobile devices.  PaidContent's Staci Kramer has the best description I've seen of why the approach is unique and compelling, involving as it does:

[A] river of news for mobile devices that meshes multiple RSS feeds from one news source into an easy-to-navigate stream of updated links, headlines and summaries. . . . Each "river" has 250 items with the oldest dropping off as new ones are added; duplicates are pulled. To read the full stories, users have to click through to the site so traffic accrues to the news outlet. Winer told me during a phone chat that he sees this as a chance to introduce more people both to the power of RSS and mobile devices. This particular concept is designed to be static and to scale massively.

As Staci suggests, this is very streamlined from the user experience standpoint.  One can get the aggregated output of a vast, multi-feed outlet like the New York Times by entering one short, manageable URL into a mobile browser.  This is a big deal, the "invention that mothers necessity," as Doc Searls put it recently, because it puts this material in front of an eager audience (of waiters-in-line, travelers, etc.) who would not otherwise be there and reading if they had to populate their mobile devices with similar offerings feed by feed and/or manually.  Dave emphasizes this aspect of his approach when he rightly calls it innovative "because of the zero setup."  It's a little like a Las Vegas $2.99 buffet — catered by Le Cordon Bleu.

Being all for zero setup coupled with useful information to brighten the dolorous dead zones of life, yesterday I added all the available news rivers to my phone, and this morning augmented with the one my new boss leaked.  They offer amazing bang for the buck (the "buck" being the minimal amount of work involved in bookmarking the short URLs in the phone's browser), and, since I don't already use something like Google Reader (which will put your feeds on your phone with its new mobile interface, assuming it has them), they add a whole new dimension to my relationship with both the device and these news sources.

It was about then that the intellectual property ramifications began to sink in. 

I went to see if anyone had yet brought that up, and found Staci Kramer's post mentioned above.  She indeed spotted the issue:

What if the company has a problem with an effort that includes its name and content but isn’t NYT-run? Winer: "If they don’t want it to be on they can turn it off. I hope they don’t do that."

Trouble is, potential infringement doesn't stop being potential infringement just because an opt-out is available.  As Staci points out, there are both copyright ("content") and trademark ("name") considerations at stake.  Particularly flirting with litigability (search it, I'm not the first) are what Staci calls the test sites, which, unlike the New York Times and BBC rivers, reproduce whole posts rather than headlines and synopses with a link through to the source. 

As with aggregators and RSS, there are several arguments that could be made to counter infringement claims concerning news rivers (e.g., fair use, implied license, etc.).  This is far from Dave's first rodeo, and I know he has lawyers he trusts.  I bring it up because I want this promising sprout to flourish and prosper, not get chopped down before its time by the uncertainties inherent in the fact no court of law has ever considered the legality of a lightweight, place-shifting oriented site that, from a policy standpoint, should really be treated like an aggregator.  (Court:  "What's an aggregator...?")  So Dave, a plea from me:  don't race too much further down this road without getting some solid counsel about your riparian rights.

Topics: Mobility

About

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. For further details please see her professional background and speaking schedule. Denise's career is characterized by her passionate engagement in intell... Full Bio

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