Legal and Ethical Link Blogging

In a recent post on TechCrunch, Duncan Riley sparked a controversy by saying that the blogs created by Google Reader’s linkblog feature “already break copyright and in a small way undermine blogs and content creators.”

That statement resulted in a flurry of comments with individuals falling on both sides of the debate. The debate then quickly spilled over to other sites including Robert Scoble’s blog, where he advocated the use of truncated feeds to stop unwanted content reuse, and the original post on Google Blogoscoped also got dragged into the debate in a small way.

At issue is whether or not sites such as Scoble’s link blog are violating copyright or ethical RSS practices by reposting entire entries. The answer, however, is not as simple as either camp wants to believe and this issue is going to have to be sorted out both in the court of law and in the court of public opinion.

Legal Issues

I’ve talked several times on this site about why RSS scraping is not acceptable. Yet, many in the pro-syndication camp continue to talk of implied licenses or variations of the theme.

Unfortunately for them, the implied license theory has no basis in law and has never actually been tested and seems likely to fail when it is. The notion of an implied license with RSS feeds has already been shot down by many lawyers specializing in tech law and the lack of consensus on the issues seems to only further the likelihood that courts will rule against such a license as they tend base such licenses on standard industry practices.

When determining if an implied license exists or not, the intent of the technology matters less than the intent of the publisher and that, in turn, matters less than what the practice in the industry at large is. Even if you can conclude that RSS was intended to be used as primarily a syndication tool, if most Webmasters use it with the intent for personal reading, that matters more than the original vision.

However, even if an implied license does exist with RSS feeds, it is instantly trumped by any real license. Be it a Creative Commons License or a simple “No Republication Allowed” license, once the publisher has made their intentions known, the implied license fades away.

With all of that in mind, it is almost certain that the majority of these blogs do violate some element of copyright law, at least on paper.

However, the Internet is a strange world. Where, in most environments, ethics cover a broader scope than law, on the Web, many things that are illegal are not viewed as unethical.

That might explain why, despite an almost certainty that some of the posts on the Google Reader-produced link blogs have violated the letter of the law, few have said anything about it.

The Ethics of the Situation

Unlike law, which is written down and tangible, ethics have not such touchstone and vary wildly from person to person. What one person considers ethical, another will not.

However, the general consensus on the Web, if there is such a thing, seems to be that reuse of content is acceptable so long as it supports the author. Plagiarism is not tolerated, neither is refusal to link back and creating derivative works without at least a hat tip is unacceptable.

Still, republishing a work, if done in a way that encourages visitors to take a look at the author and give them feedback, is viewed as acceptable and even good. It might be a technical violation of copyright law, but it is not frowned upon by most on the Web.

The problem many have with a site such as the linkblogs created by Google Reader are not that they reuse content, but that they provide little motivation for the reader to click through to the original site or the original feed. Where sites such as Digg and Reddit have amassed a great deal of support among both visitors and Webmasters for their ability to drive great deals of traffic to quality content, Google Reader blogs and others who republish full articles, offer little reason for a user to click through and most do not.

The exception is when a reader wants to either comment on a work or view other people’s comments. That is why the proposed comments feature upset so many bloggers. It removes the last motivation your average viewer of the linkblog has to visit the site.

Though this may expose the author’s work to a whole new audience, he or she might never be aware of it. They are completely left out of the interaction loop. Though some may still click through to the original article. Most will not.

Linkblogging, by its very name, should be more about the linking than the reproduction. The first duty of a linkblog should be to reward the authors who took the time and effort to create the content we enjoy, not produce an entire blog based upon that content. Visitors don’t seem to mind clicking links on sites such as Digg and Reddit and there is little reason they would mind clicking links on a link blog.

Though reproducing the post is fine for some sites, such as PT with its Creative Commons License, others will object and it is their right. The content’s medium, as we discussed above, does not do away with the artist’s rights to their content.

Though I feel that those who permit such syndication will do better than those who do not in the long run. It is the choice of every blogger and author. In the meantime, blindly copying and pasting entire posts to form a new blog, as the Google Reader linkblog feature as designed to do, raises both ethical and legal questions.

Yes, the linkblogger does a great deal of work and adds value to the work, but without the author’s effort, the linkblog would not exist. The linkblogger’s first priority should be to support their efforts, even if it means offering less on their own site.

Some Steps

If I were going to make my own guide to ethical link blogging. It would be as follows:

  1. Take Only What You Need: Taking some content to make a link blog entry is natural. However, take only what you need to explain the work you’re linking too and tell readers why they should visit. (Hint: Think of the fair use defense.)
  2. Separate Original Content: Original content and commentary should be easily distinguished from quoted material. Some sites have a real issue with this.
  3. Direct Links: Don’t route the link through a 302 referrer, a script or a proxy, support the site fully and link to it directly, letting it gain the search engine benefit.
  4. Search Engine Blocking: If you do use a great deal of other site’s content, with permission, consider prohibiting the search engines from indexing your site to avoid accidentally bumping the original out of the rankings for that piece. Google, from what I can see, does not do that with these Google Reader blogs (though it should be smart enough to figure it out on its own).
  5. Remove When Asked: Scoble says that legitimate linkbloggers should remove content when asked, I agree. If you take the steps above, there should be no such issues, but some out there on the Web dislike even friendly links. There is no consoling those people, but it is best to offer an opt out to let people remove their own entries if they wish.

To Webmasters and bloggers, I would also offer the following suggestions:

  1. Clearly State Your RSS License: Whatever your RSS license is, put it in your actual feed. I have a copy of my CC license built into my feed. I encourage others to do the same, even if it is just a note in the footer saying that “No redistribution is allowed”. That way, even if an implied license is found to exist, an actual license will trump it. This also shows bad faith on the part of the link blogger if they ignore it.
  2. Use Digital Fingerprints: We’ve discussed many times using digital fingerprints to track RSS usage. This is another reason to do that. If you are comfortable with the reuse of your feed, this will let you track who does so and join the conversation. If you disapprove of such uses, this can help you put a stop to it.
  3. Focus on Bigger Fish First: Though I can understand the discomfort many will have with full-text linkblogs, especially Webmasters who do not have a CC license, there are bigger fish to fry. Spam bloggers who scrape entire sites, plagiarists that claim the work as their own and those who use your works commercially all deserve more attention and do more harm. Targeting full text link bloggers may be worthwhile for some, but it is important to keep priorities straight and realize that most linkbloggers, at least the human ones, are not being malicious with their reuse.

All in all, the main thing for bloggers is to be clear about your intentions and eliminate any question about your license before it has a chance to be raised. You have a right to your work no matter what medium you put it in.

It truly is a situation of being safe rather than sorry.

Conclusions

Personally, I am upset with Google about this. Though I have no real issue my content being reused in such a matter and, in fact, encourage it through my CC licensing, others feel differently and Google, through the very nature of their product, disrespects that.

Already Google’s DMCA policy leaves a great deal to be desired as they act in an obstructionist manner when it comes to Webmasters trying to protect their content hosted on Google’s services. They’ve allowed Blogspot to become a spam haven, have turned Adsense into the monetization method of choice for those spammers and have done little to stop the abuse of their services for copyright violations.

Their linkblog service, to me, is just another slap in the face.

If Google had paused to think about how Webmasters might feel about this kind of use, they quickly would have realized that many would have been upset about it and at the very least built in an opt out mechanism. As of right now, there is none that I can find.

It seems strange to me that the safeguards Google takes when displaying search results (checking for robots.txt, for meta tags, displaying only snippets, etc.) were omitted when dealing with the linkblog feature.

Of course, calling it a linkblog is, in a strange way, a misnomer. It is more of a regular blog made up of other site’s content. The links themselves do not play much of a role at all.

All in all, I have to remain very skeptical about this service. It doesn’t feel right to me legally or ethically and, while I take comfort that there is no monetization in the product, the republishing of full blog posts is very likely to not sit well with many people and for very good reasons.

RSS is not a free for all, content remains protected no matter what format it is in. It may be uncool and un-Web 2.0 to believe that, but one thing very clear, the courts are neither of those things.

Note: My apologies to Robert in advance if it seems as if I’m picking on him. The only reason I reference his blog so many times is because its the only one like I know of and it is, by his own account, the largest. Not because I have anything against him personally or that blog in particular.

Also, if you are reading this Robert, no I do not have any interest in being removed from anything I might be in. My concerns stem from empathy of those who have different views than I.

11 Responses to Legal and Ethical Link Blogging

  1. Andy Beard says:

    You are missing out on Google Reader ignoring and removing licensing information contained in feeds.

  2. JB says:

    Andy: That is a point worth mentioning. I spoke with an attorney friend of mine the other day and she felt Google was on "thin ice" with Google Reader's linkblog tool. I do have a question though, that stripping you're talking about, is it something that appears on every single item in a feed or just in the header of the feed itself? I read your great article on the topic but that wasn't completely clear to me.Also, just a heads up, your site has a bug in Safari 3 that's causing the sidebar to appear below the text. It could be a glitch with Safari, but I wanted to let you know.

  3. Andy Beard says:

    The items I listed in my post are all added to the header for the feed, thus it is available to the reader when the content is picked up.

    On my article what I did (and still have in operation) is I used Feedburners own tool to add the no sharing with Yahoo Pipes and no index information, but the Bloglines code would be added in the same place.

    I then shared my own feed contents and linked to it.

    In that shared feed the information is stripped out.

    You can still have information added to your posts with a plugin, but that is not machine readable as I don't believe there is any proposed standard that works with individual feed items (though I could be wrong)

    I understand some of the technology in this, but not like the real technology geeks.

    I think the most dangerous aspect of this isn't text, but licensed images which class as a complete work. You could get away with publishing to subscribers, but not free distribution and reuse elsewhere.

    I know you are not into "marketing" stuff the same way I am, but there was a free report by Mike Filsaime that I encouraged people to download (yes it costs an email address and Mike does send occasional email promotions)

    He has actually experienced a couple of costly legal problems with copyright which are enough to scare people which is why whilst so many bloggers don't agree with me, I keep fighting this uphill battle.

  4. Oh they remove licensing information from the feeds as well?

  5. Andy Beard says:

    Any data contained in the header of a feed such as the bloglines code for preventing sharing, or the feedburner code to prevent use with Yahoo Pipes gets stripped out by Google Reader when someone shares individual items.

  6. JB says:

    Andy: That is a point worth mentioning. I spoke with an attorney friend of mine the other day and she felt Google was on “thin ice” with Google Reader’s linkblog tool. I do have a question though, that stripping you’re talking about, is it something that appears on every single item in a feed or just in the header of the feed itself?

    I read your great article on the topic but that wasn’t completely clear to me.

    Also, just a heads up, your site has a bug in Safari 3 that’s causing the sidebar to appear below the text. It could be a glitch with Safari, but I wanted to let you know.

  7. Andy Beard says:

    The items I listed in my post are all added to the header for the feed, thus it is available to the reader when the content is picked up.

    On my article what I did (and still have in operation) is I used Feedburners own tool to add the no sharing with Yahoo Pipes and no index information, but the Bloglines code would be added in the same place.

    I then shared my own feed contents and linked to it.

    In that shared feed the information is stripped out.

    You can still have information added to your posts with a plugin, but that is not machine readable as I don’t believe there is any proposed standard that works with individual feed items (though I could be wrong)

    I understand some of the technology in this, but not like the real technology geeks.

    I think the most dangerous aspect of this isn’t text, but licensed images which class as a complete work. You could get away with publishing to subscribers, but not free distribution and reuse elsewhere.

    I know you are not into “marketing” stuff the same way I am, but there was a free report by Mike Filsaime that I encouraged people to download (yes it costs an email address and Mike does send occasional email promotions)

    He has actually experienced a couple of costly legal problems with copyright which are enough to scare people which is why whilst so many bloggers don’t agree with me, I keep fighting this uphill battle.

  8. JB says:

    Andy: I'm going to download the ebook now and will probably give it a look this weekend if at all possible. You're right that marketing isn't my thing, but I am an advertising graduate so it isn't like there's nothing of interest to me in there.That being said, I think I better understand your point. What there needs to be is a universal way, built into the RSS standard, to allow people to give the OK for content reuse or to deny it. Ideally, such a system would be able to set flexible rules such as no images, only 250 words or only one article at a time.I think the reason Google is stripping out these things is because they aren't in the RSS standard. Still, I do agree they should keep the header information in, it's just clear that improvement is needed on both sides of the fence here.

  9. JB says:

    Andy: I’m going to download the ebook now and will probably give it a look this weekend if at all possible. You’re right that marketing isn’t my thing, but I am an advertising graduate so it isn’t like there’s nothing of interest to me in there.

    That being said, I think I better understand your point.

    What there needs to be is a universal way, built into the RSS standard, to allow people to give the OK for content reuse or to deny it. Ideally, such a system would be able to set flexible rules such as no images, only 250 words or only one article at a time.

    I think the reason Google is stripping out these things is because they aren’t in the RSS standard. Still, I do agree they should keep the header information in, it’s just clear that improvement is needed on both sides of the fence here.

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