Feed usage and copyright

Martin Schwimmer, a trademark lawyer, has asked Bloglines to remove his feed from their service, partly on the grounds that Bloglines plans on eventually selling advertising on their site. Scoble’s got a number of links to reactions to the news.

The complaint is that his feed is licensed under a “no commercial use” Creative Commons license and he claims that Bloglines, being a commercial service, is violating that license by allowing their users to subscribe to his feed.

There are a number of products and services that are advertising supported and rely on content generated by others. Although search listings contain only excerpts of web pages, search engines regularly place advertisements alongside those excerpts. Gmail puts ads next to email created by other people. Eudora does the same. Opera puts their own ads next to every page I view.

Would Mr. Schwimmer demand that Google block Gmail addresses from receiving his email? Or that Opera refuse to display the pages on his web site?

RSS is designed to to allow for easy republication and consumption of content. Bloglines isn’t taking a feed and claiming that content as their own. They’re only showing feeds to people in direct response to their request. I’d have to subscribe to Mr. Schwimmer’s feed in order to see it in Bloglines. Is this a commercial use?

This is a sticky question. Bloglines is providing a product to consumers and they have to make money somewhere. Feeds are designed to allow people to read the content of the site without visiting the actual site. So the Bloglines service is letting people use the feed that Schwimmer is publishing in the way that it was intended to be used. A product like MyRSS that scrapes sites, turning them into feeds and inserting ads is a much more clear issue. They’re re-purposing content, republishing it in a way that it wasn’t intended to be used, and inserting their own ads into it.

The question is where do we draw the line? Is reading the feed in a reader like FeedDemon a commercial use? I had to buy a copy. What about an aggregated list of posts on a site? Mt-Plugins.org used to have the latest posts from a number of plugin authors (including me) on their site. Would this be an acceptable use? Syndic8 publishes a list of random feed items as RSS. Is that okay? Would your answer change if Syndic8 started selling ads in that feed? There are a number of services that will send you feed contents by email. If I subscribed to Schwimmer’s feed with such a service and had those emails go to my Gmail address, is that a commercial use of his content and who is responsible for it?

I don’t have an easy answer to any of those questions. Up until now when faced with the question of commercial use of my feed (which I also prohibit), I’ve treated it on a case by case basis. I know a commercial use when I see it but I’d be hard pressed to offer up a definition of it.

A side note: Schwimmer is concerned that Bloglines doesn’t display his contact information alongside his feed. That’s because he doesn’t provide it in the feed. Feed readers can only display what he actually publishes. He also doesn’t include his Creative Commons license (or any other) in his feed, simply stating “Copyright 2005 Martin Schwimmer.”