In almost ten years of having his own website, Dennis Kennedy
says he has seen his content show up in many unexpected places.
However, even he was surprised when he found a twin of his blog on the
website of Bloglines.com, a very popular blog tools and RSS newsreader
service.
“I had done a search on Google and found that one of my
blog posts was one of the top results,” he says. “Then I noticed that
the address for my post was not on my website, but instead on the
Bloglines.com site.”
When he went to http://www.bloglines.com/preview?siteid=546436,
he says, “I found a doppelganger of my blog. I saw my full posts mapped
onto something that someone might think was my blog, but it definitely
was not my blog. Worse yet, the URL in the address box in my browser
showed a bloglines.com address, not a denniskennedy.com address. Anyone
who came to this page would definitely think that it was my blog and
probably conclude that I was part of the Bloglines team.”
When he
did some more checking, Kennedy found another big surprise. The
Bloglines.com addresses for his posts sometimes were ranked higher than
those on his own site. In one case, however, a visit to http://www.bloglines.com/blog/cchick?subid=4563300 brought up a page that mapped his posts onto a version of Cindy Chick's LawLibTech blog.
“Hey, it's an honor to be associated with Cindy's great blog, but it's
extremely confusing and someone could easily believe that I was copying
Cindy's material on my own blog, or vice versa. Talk about the worst of
all worlds.”
Even though Kennedy reports that his web pages have
been “repurposed” by other sites more times than he ever expected over
his years on the Internet, he says this time was especially unsettling.
“I have to admit that my first reaction was to think that they had
stolen my blog. I even went back to my own blog to check to make sure
it was there.”
Kennedy, whose law practice includes intellectual
property licensing matters, raises a number of questions about
Bloglines.com's practices. “There's no question that fair use is a
complicated area in copyright law, but it's difficult to find ways to
fit this example into traditional notions of fair use. I'd be surprised
if they hadn't gotten a legal opinion on this approach, since it seems
so central to their business model, but I'd like to see the reasoning
in that opinion.”
His main question, however, relates to the
commercial benefits Bloglines.com seems to gain from his content. “With
my content on their site, they are able to surround my content with
their own ads and make it part of other revenue-producing activities.
At the same time, they are not showing any ads or sponsor logos I have
on my blog. Presumably, the Bloglines.com twin of my blog diminishes
the traffic to my blog. It's all very analogous to the early
controversies over the framing of web pages, even though the
technologies are different.”
However, more than intellectual
property law may be at play. “Everywhere we go on the Internet, we are
clicking our agreement to all sort of contracts that we may not read
carefully enough,” notes Kennedy. “I'd hate to think, however, that we
are giving our permission for this type of use with a click of the
mouse or simply by using the Bloglines.com website.”
He sees no
clear answer, for himself or other bloggers. “It's difficult to sort
these issues out. In a sense, by using an RSS feed I am exposing my
content to the world and, as my friends will tell you, I probably won't
be satisfied until everyone in the world is reading my posts. In some
ways, the whole scenario reminds me of a law school exam question. Fair
use or not? What controls? Their clickwrap agreement, if any, the
“terms of use” language on a blogger's site or something like a
Creative Commons license for the bloggers who use these licenses?”
Kennedy
admits that he has expected to see some action or discussion from the
Creative Commons group. “One of the Creative Commons licenses you see
frequently specifies no commercial use. Wouldn't this be commercial
use? The silence from Professor Lessig and the Creative Commons group
has been overwhelming. It raises serious questions about what the CC
licenses really mean and how their terms will be enforced. I don't use
the CC licenses because I don't think that they make sense for me, but
many bloggers routinely apply one of these licenses.”
Do bloggers
have any recourse? “That's a great question,” says Kennedy. “Bloglines
offers an RSS feed reader tool that many people I know really like. I'm
one of the biggest advocates of the power of RSS feeds you'll find. I
hate the idea of seeing the development of RSS feeds slowed down to any
degree whatsoever because of lawyers and legal issues. I really want to
hear more from Bloglines about this issue before making any final
judgments.”
Kennedy suspects that there may not be any simple
practical solutions. “Of course, I'd love to see some of the venture
capital money that Bloglines has gotten or will get make it back to
me,” he chuckles. “Your first thought, of course, is that there should
be some form of payment to the bloggers whose content is harvested and
mapped onto the Bloglines site, but creating a mechanism would not be
an easy job. In addition, you have the Google model, where, as I
understand it, Google has actually copied my content into its
databases. I haven't gotten my check for my small contribution to
Google's successful IPO and I'm not holding my breath waiting for it to
arrive,” he says, laughing.
“I always prefer practical technology
solutions to legal solutions,” say Kennedy. “Maybe that's why people
also tell me that I'm not like most lawyers they meet. So, I've been
thinking of practical alternatives.”
Has he found any good ones?
“Well, Bloglines seems to be capturing and repurposing feeds rather
than reproducing blog content, if I can make that fine a distinction. I
look to the feeds for the solution. Although it puts a burden on
bloggers, I'm giving serious thought to including a statement at the
bottom of each of my feed items that gives the post's real URL on my
site and makes it clear that I'm not a participant in or an endorser of
the Bloglines site. But, that only covers half the problem.”
Some
may be surprised to find that in the free-ranging world of bloggers,
there is one place most bloggers are afraid to venture. “The last taboo
in blogging is definitely placing ads in feeds. The group of bloggers
who most of us see as the inventors of blogging debate this issue
endlessly and treat placing ads in RSS feeds as a defining moral issue.
Those who have tried putting ads in feeds have really taken some heat.”
Kennedy
laments the fact that the debate has gone on and on and seems no closer
to resolution. “Between Thanksgiving and the end of 2004, I collected
more than 150 blog posts on the topic of ads in feeds. It's sad to see
highly-regarded and popular bloggers resorting to pledge drives,
begging and randomly-served ad schemes that probably only benefit blogs
with huge numbers. It breaks my heart to see a blogger who provides
great computer tips or other great information begging for donations
when his or her aging computer dies, especially when companies would
gladly pay for even a simple sponsor logo in that blog's RSS feed.”
Today,
Kennedy feels the debate over ads in feeds has reached the “how many
angels can dance on the head of a pin” stage, with a focus on semantics
and metaphysics. “I minored in philosophy in college, but the
discussions in this debate can make my head spin. I hate to even
comment on the current argument that it is OK to make money from blogs but not to make money with blogs. By the way, it is essential to italicize the “from” and “with” to get the real flavor of this discussion. As a practical matter, some of the explanations why one practice is a “from” and another is a “with,”
make you long for the clarity of Bill Clinton and what the meaning of
“is” is. I don't want to be critical, but it's possible for a
disinterested observer to conclude that “from” is what the person making the argument does and “with”
is what someone else does, at least in some of these discussions. The
irony is that the whole debate has ended up putting most bloggers in
the worst of all worlds – the world of randomly-served ads. How in
the world that isn't a “with” I'll never understand. Sorry for all this inside baseball talk about blogging esoterica.”
Kennedy
says that he and others are losing patience with the debate and the
world of randomly-served ads that the endless debating has created. “I
want to be a good citizen in the blogosphere. Lawyers already have a
place in Internet history as the creators of spam. I've been reluctant
to move to ads in feeds, despite the inquiries I have had, without a
clear signal from the leading bloggers who dominate this issue.”
He
reflects for a moment and then says, seriously, “The approach Bloglines
has adopted, especially in my case, changes the whole nature of this
debate about ads in feeds. In fact, I'd argue that it ends the debate.
If my blog can be duplicated in another location without the ads on my
blog or any of the other materials I might have on my blog about my
products or services or other ways I might make money “from” my blog,
then what are we left to talk about? The only effective choice I have
to realize the value of my blog's content and audience is to sell ads
in my feed. Bloglines has brought the issue to a head. In fairness,
Bloglines is not alone – you will find other examples.”
Kennedy
plans to take steps soon, but he's not looking to fill his feeds with
intrusive ads. “I don't even understand why bloggers would use
randomly-served ads. It not only works against the sense of trust and
authority that a top blogger can establish, but it also introduces the
possibility that a randomly-served ad may make it look like you have a
conflict of interest. I've always thought that the sponsorship approach
is the way to go, with a small, tasteful logo and tagline, and possibly
with a link that allowed the blogger to earn commissions on sales
generated through the feed. That approach also has the benefit of
disclosing a blogger's financial relationships. It helps readers adjust
for potential bias or conflicts, while offering good compensation to
niche bloggers.”
Kennedy warms to the subject, “Sponsored ads in
feeds are such a logical step that I've been surprised that there has
been such a fight against them. Blogging is about freedom, but the one
thing I've never felt free to do as a blogger is put an ad in my feed.
I understand the concern about spammers and pop-up ads, but that
concern doesn't come up in the case of sponsored feeds. Each blogger
can make his or her own decision. Now only the highly popular blogs can
earn anything significant from ads on their blogs and corporate and
academic blogs are almost immune from the question. Let's end the
debate and start experimenting. At this point, Bloglines has forced the
issue and I feel compelled to move to the ads in feeds approach rather
than stand idly by and watch others make money off my content.”
With
a twinkle in his eye, Kennedy smiles and concludes, “As the song says,
if ads in feeds are wrong, I don't wanna be right. I'm willing to take
the heat, but Bloglines has forced my hand.”
Does your blog have a twin out there? [DennisKennedy.blog]