Riparian Rights

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.

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TOPICS: Mobility
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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.

Topic: Mobility

Denise Howell

About Denise Howell

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.

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9 comments
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  • Hypocrisy

    This is not new, it has been available in Bloglines for years. Dave Winer was the first to complain about Google's toolbar modifying his content, yet when he modifies the BBC's content everything's fine.
    spanker
    • link

      http://www.scripting.com/2005/02/22.html
      spanker
      • Winer-hating at its best

        Spanker, if you're going to be a Winer-hater, at least criticize something valid. AutoLink and BBCRiver are completely different.

        With AutoLink, Google was adding links to content being displayed on its originating site. The average user probably wouldn't have realized that the links were not in the original content.

        Unless I'm mistaken, Dave's simply rendering the headlines and summaries contained in the feeds on a site of his own. Isn't that kind of the point of syndication?
        mattgifford
        • Winer-loving at its worst

          Google's tool took other people's content and rendered it differently client-side. Winer's taking other people's content and rendering it differently server-side. In neither case is the publisher given the opportunity to opt-in or out of the different rendering.

          IMO both are reasonable applications of syndication, but Winer was highly critical of Google.
          spanker
          • Give me a break

            Actually, I have a mixed feelings about the things Dave says and does. I don't really see what the big deal is with Dave's River sites, either. But I can't stand to see people take meritless potshots at anyone.

            AutoLink changed the meaning of content by adding hyperlinks. Even worse, it wasn't totally obvious to the average user that the content had been changed.

            Dave's River sites are simply reprintings of content as it's presented in the feeds. He does nothing to change its meaning.

            I can't believe that you don't see the difference. That's what leads me to believe that you're a Winer-hater looking for anything to be critical of.
            mattgifford
          • Look again

            The BBC News feed includes the BBC News logo, linked to the corresponding HTML version of the feed. In Winer's version, there is no logo, but instead there is a icon linked to a page featuring a photo of Dave Winer and some blurb promoting himself and his blog.
            spanker
          • Grasping at straws

            Big deal. Most other aggregator writers can be accused of not showing that logo, as well. I don't think I've ever used an aggregator that actually uses that image. If you want to base your entire argument on the omission of a logo, go ahead. But it's pretty weak.

            Sure, the page explaning the site is a bit hucksterish. But it's totally necessary. In my book, simply putting a site like that out there without linking to a page explaining who you are and what you're doing *would* be a problem.
            mattgifford
  • No grey area about it

    At present, Dave is not acting in accordance the BBC's license for using its RSS feed, as it fails to properly credit the BBC for it (the license is at http://news.bbc.co.uk/1/hi/help/rss/4498287.stm and it's very clearly written - look for "accreditation").

    I'm sure that he'll correct this at some point.
    ianbetteridge
    • Why care about the BBC license?

      ianbetteridge: Why would anyone care that BBC has a "license" published in some random location of their web site? There is a strong argument that the mere act of publishing something in a syndication format and making it openly available on the web creates an implied license which permits "syndication" in the usual and customary ways which we can reasonably expect that the BBC knew about prior to their adoption of the syndication format. (i.e. they must have been aware of headline viewers, re-syndicators, aggregators, etc. In fact, it is undoubtedly the mere existence of these things that motivated them to create syndication feeds.)

      If what RiversOfNews is doing is "syndication" rather than something else (i.e. some other derivative work, repurposing, etc.) then some random text on the BBC site can't override the implied license to syndicate. If we were to accept that random bits of text on the BBC site *can* override the implied license to syndicate, then we would be "poisoning the stream" and forcing the whole syndication network to shutdown immediately. The reason for this is that there is no standard form, created either by a legislature or a court, for expressing "licenses" for syndicated content. Thus, since every publisher could choose their own form of providing notice, no feed syndicator would be able to trust that they actually had seen whatever restrictions might exist. By default, feed syndicators would have to stop reading feeds in order to stay out of court.

      This would be wrong. BBC can't "poison the stream" from which they wish to benefit. They knew about syndication before they published their feeds and they understood, if only implicitly, that there was an implied license to syndicate when they decided to publish their feeds.

      bob wyman
      bobwyman