So yeah, I think this guy Martin Schwimmer is a anal-retentive pinhead (it's not what he said, but how he said it), but it's obvious this was going to happen sooner or later. I wrote about this same legal and moral dilema in 2003:
Copyright law is very simple: You create something and its yours. It's not a trademark, or a patent, but a copyright. It's automatically given to you when you create something and if anyone wants to use your content for any reason, they need to ask you. Things like the Creative Commons license and the Gnu license *do not* supersede this basic right. You create something and its yours and you get to do what you want with it, but others need to ask. Period. I see developers all the time get confused about this - they wonder if they can change a license on their work after they've published it. It's *YOUR* copyright, you can do *whatever* you want with it. Licenses are for others.
So this guy is basically saying that all commercial aggregators are illegal, and I think he's right. That includes My Yahoo, BlogLines, MyWireService, etc. You can't take for granted the fact that the content is out there in an RSS format made for syndication. It doesn't matter. In reality it's no more or less formatted than these words are right now. If you want to republish or use someone else's copyrighted material, you have to get permission. Period. That's how it works, digitally packaged up or not. And it doesn't matter if the aggregator is free or not, if it is re-publishing the content (i.e. not from the original source) it's against copyright law.
I can put ads on this site because it's all my content, but on a site with a bunch of external feeds - several of which are marked for Personal Use Only? That doesn't seem either right or legal. The whole idea, actually, of putting ads on other people's content just doesn't seem right. I'm not the only one. Anyone else besides me notice that neither Bloglines, Technorati or Feedster have advertisements? That's nice, but how are these sites going to make money? And how different is aggregating RSS feeds from what Google does (aggregating HTML pages)? I mean, they put ads on a summary of my pages, just like an RSS feed. They also have an archive of my site online as well, which is against my personal copyright of this site, but no one seems to mind just yet. There seems to be this craze for organizing and displaying all the info out there for profit - but I wonder if that's enough "added value" to justify charging for that service. I guess it is, as Technorati, Feedster and NewsGator have all gotten funding.
I wonder how long you can add value to a free service and charge someone money for it? I guess we bottle water, right?
Since then I've come to the conclusion that since commercial search engines and aggregators don't charge for the content they serve, they should not be subject to non-commercial licenses or general copyright infringement. I think this is the border of fair use. They make money through the value they add to the content, not the content itself. The difference is subtle but important. That said, Creative Commons should make it *very* clear that advertising around the non-commercial marked content is against their license if they think so, or no if not. I don't think they've made it clear, please correct me if I'm wrong.
Also, Bloglines specifically acts as a server-side proxy for me. People like Martin need to understand that the line between what's a desktop app and what's a server-side app are disappearing. Bloglines is to me just a more convenient and useful aggregator application. Its location is irrelevant. And I have to say that as an avid Bloglines user, Martin's whole tone about the service pissed me off. He talked about it like it was some fly-by-night spam operation copying his content for devious commercial purposes. Moron. The question is does he think Google's cached copy of his website is illegal as well? Has he sent a complaining email to them? What about My Yahoo's RSS aggregator? Is Martin going to take on Yahoo next?
Look, I *hate* it when people copy my content wholesale on their weblog. But it's only when it's not abundantly clear who's content it is when I get pissed off. If the search engines can find my content on your site? That's when I get *very* annoyed. I've emailed at least four people in the past couple of weeks to cut out the crap and delete my posts. But online aggregators? Search engines? These are legitimate services, even if they are commercial.
The fact that these services make money from advertising is an obvious consequence of not being able to charge money for copyrighted content that's not theirs. The CC license, if it tried to restrict this practice would be a joke. Let's say that the CC content was a song instead. Now let's say I "mashed up" this song with some others and made a killer song. Now that song is being played on commercial radio. Is this illegal? Radios are supported by advertising. And does the announcer have to give attribution each time the music is played? What about video work? Say a mashed up video becomes a huge hit and is given awards and played on television. Well, is that illegal? Again, television is supported by advertising. The answer to these questions is no, these are fair-use cases, even within CC's non-commercial license. At least in my opinion. If Creative Commons says this is against their license, well they will just blow the whole movement out the window. Period.
By the way, I've made $0.85 in January from Mobdex, with 2 prominently listed CC-licensed books on it. The site is "advertising supported" (hahaha), but does not charge for the content, so in theory I've got a hound in this hunt.
By the way, the solution I gave 2 years ago is still valid: RSS itself is copyrighted. Check it out. If the RSS license *required* you to allow syndication of that content for personal and commercial services in order to use that format, this would solve many of these problems.