Wendy Seltzer wrote:
> I'm still not clear on what's happening in 1.1.
>> 1.1  It must also be noted that licenses associated with
>> feeds or entries using these mechanisms are advisory and
>> are not, by themselves, legally binding.  
        Section 1.1 contains two sentences that are, I think, at least in
part the result of a telephone conversation on this subject that James and I
had about a week ago. However, I think that James has written both sentences
too strongly and it is quite possible the first sentence is unnecessary.
I'll explain the logic behind my reasoning. First, the first sentence and
the second, later.
        The first sentence is concerned with the binding between the feed or
entry and the actual license. For one to rely on a license, either as a
rights holder or as a grantee, you need to be able to show what the license
actually said at the time that you relied upon it.
        Because of the nature of the tool being used here, a hyperlink, we
must accept that the binding between content and license is a weak and
fragile one. There is no guarantee that the content of the license
associated with a feed at one instance will be the same as it is at some
other instance. Also, there is no mechanism provided to ensure that claims
made about what the license was at one instance can be proved at a later
time. This weakness of the link is going to make it very difficult for
either a copyright holder or one who relies on a license found in a license
link to rely on being able to make definitive statements about what the
license content actually was. Certainly, there are special cases. For
instance, those who link to Creative Commons licenses using the appropriate
and presumably well managed URLs that Creative Commons provides are going to
be able to much more certain when making assertions about license content
since these licenses are only modified in very public and dated events.
However, Creative Commons is a special case and can't be generalized to all
possible licenses. Thus, while we might find that links to Creative Commons
licenses (and others which are similarly well managed) might be effective,
it is likely that links to at least some other licenses would not be
considered effective. Thus, it might be better to word the sentence
conditionally. Something like: "licenses associated with feeds or entries
using these mechanisms may not be legally binding"...
        My personal feeling is that given the customs of the net today, it
is likely that the most common licenses referred to in these links will, in
fact, be Creative Commons licenses which grant rights otherwise restricted
by copyright. The problems come in licenses which attempt to restrict
rights. One class of such licenses will be those that claim rights that are
already reserved under copyright. Such licenses are really redundant and
don't accomplish anything useful. I'll ignore those for now. The most
interesting cases will be those licenses that attempt to assert limitations
to rights which would normally be considered to be granted to consumers of
feeds. Such rights would include things like "Fair Use" and "implied
licenses." It is *vitally* important to our community that we ensure that
such restrictive licenses are not encouraged or facilitated by this rfc.
        There are those, I among them, who argue that the mere act of
encoding data in a syndication format such as RSS or Atom, posting that
content on an openly accessible web site, and doing such things as pinging
to publicize the presence of that content, creates a limited "implied
license" for others to access and copy the data for the purposes of
syndication. This is very much like the implied license to copy HTML into
system buffers, caches, network routers, local disks etc in the process of
reading it. With HTML, courts appear to accept that you have a right to do
something that would be prohibited by a strict reading of copyright law.
Under limited circumstances, you are allowed to make copies that are
technically necessary and facilitative to the achievement of the content
creator's assumed purpose of having you read the pages. Similarly, when you
publish to a syndication network, one accepts that there is an implied
license to do not only the same kind of copying that is permitted for HTML,
but also that you accept that your content will be processed by various
syndication-related intermediaries -- feed aggregators, feed filters, feed
format converters, publish/subscribe systems, etc. However, please note that
this is still a *limited* implied license. The fact that syndication is
permitted doesn't mean that the general creation of derivative works,
repurposing of feed content, etc. is permitted. The license doesn't allow
"stealing" -- it only allows moving the stuff around in the process of
getting it to readers.
        The syndication network can only work because we assume that there
is an implied right to syndicate. If, for some reason, we were to establish
that this implied right could be revoked or modified by licenses associated
with a feed or entry, then we'd probably have to shutdown the entire
syndication network until such time as every intermediary and aggregator was
modified to support license discovery and interpretation. The social and
economic cost of this destruction of one of the most exciting areas of
innovation on the net today would simply not be accepted by the courts -- at
least not in the USA (I believe). Courts aren't going to accept this
"poisoning of the stream" simply so that someone can commandeer the
syndication network and force it to process data in a manner different from
the way it was designed to work.
        Of course, one could argue that as long as the Atom license link was
used by everyone, then it should be easy for folk to make the adjustments
and thus the cost might not be too great. However, once we've accepted that
there is even one mechanism by which someone can publish content that
overrides the implied license to syndicate, we must ask the question: "In
how many ways can the override be expressed?" As far as the law is
concerned, there is nothing special about IETF standards. Thus, while the
IETF might say that you can use a license link to bind content and licenses,
the W3C might decide to create a "rights" link instead. ANSI might then
create a "copyright-assertion" link. And someone else might decide to use an
element instead of a link. The problem here is that operators of syndication
components and aggregators would have no means of being sure that they were
catching all the licenses associated with the feeds that they were
syndicating. Someone who was malicious might, in fact, create a new
"standard," publish content with a restrictive license, and then make a
bundle by suing everyone downstream. 
        I think courts won't permit a situation in which the consumer of
content has no idea how to determine if licenses are associated with content
in the same way that they don't let you rely on "Do not enter" signs written
in tiny, unreadable type. The courts would probably insist that legislatures
do as they did with the copyright symbol -- make a formal, legal
determination of how licenses are to be linked to. (Let's hope that we don't
get legislatures involved in the definition of Atom. We've got enough issues
to deal with already.)
        In any case, it may be that "Ignorance of the law is no excuse!"
however, ignorance of an optional, experimental extension to the Atom format
is certainly not a crime. No matter how earnestly content creators may be in
wanting to use the license link to restrict rights, they have no means of
compelling anyone to pay attention to or even take note of the links... Even
in the case of some system that can be shown to understand the license link
mechanism, it can be argued that in the absence of a legally accepted syntax
for stating restrictions on rights, that the reader can't compelled to
"understand" the limitations expressed. (Note: let's not talk about creating
a machine readable license format... Just about all useful methods of doing
so are already patented...)
        In summary:
        1. It is unwise to induce folk into believing that the license link
can be used to override the limited implied license to syndicate, and
        2. There is no way to compel anyone to take note of the links
anyway.
        The situation is, of course, different with things like Creative
Commons licenses. Courts are likely to say that any publisher who includes
the appropriate namespaces in their feeds and includes properly formatted
license links that point to Creative Commons licenses is demonstrating a
real knowledge and appreciation of the mechanism and is willingly granting
licenses to all those who share the same understanding of the mechanism and
willingness to use it. Basically, the publisher proves, by making the effort
and signaling via the published and controlled syntax, that they do, in
fact, wish to grant the rights expressed in the license. Readers of feeds
are then free to exploit their understanding of the publisher's signals to
exercise the rights granted -- just as they are free to refuse to understand
the restrictive licenses published by others.
        Thus, it would seem that the only effective use of the license link
is to grant rights not to restrict them.

The second sentence in 1.1 is:
>> Nor can a license associated with a feed or entry
>> restrict or forbid access to, redistribution, aggregation,
>> caching and display of those items by third party
>> intermediaries such as search engines and so-called
>> "online aggregators".
        This second part of 1.1 is stating support for the theory that the
act of publishing data in the Atom format creates an "implied license" for
the limited purpose of syndication and lists a number of processes which are
considered to be part of the syndication process. Hopefully, my discussion
of the first sentence explains what this is all about.
        My only suggestion for this sentence is that it might be less
strongly worded. Given that the law in this area is not settled, it might
make sense not to say "Nor can a license... restrict..." Rather, it might be
more accurate to say something like: "It is believed that a license ...
cannot restrict...."

        My apologies for such a long message...

        bob wyman


Reply via email to