Apple Informs Bloggers It Will Be Using Their Content In Its 'News' App Via An Opt-Out Only 'Agreement'

from the just-thought-we-should-tell-you-about-all-the-things-we-said-you'd-do dept

UK's The Register has noticed an Apple job posting for a rather unusual position: in-house journalist. Better surround that word with scare quotes, because it's entirely unclear how both writing for a company and being an ethical journalist are supposed to work together.

The role requires a bachelor's degree in journalism or "a related field", more than five years of newsroom experience and "a deep knowledge of multiple content categories".

"They will have great instincts for breaking news, but be equally able to recognise original, compelling stories unlikely to be identified by algorithms," it said.

It added: "Successful editors will be ambitious, detail-oriented journalists with an obsession for great content and mobile news delivery."

Not surprisingly, the ad fails to mention anything about independent journalism. So when news breaks about its nemesis Google's Android, or factory conditions in China, we can be sure Apple News will be scrupulous in its complete lack of coverage.

While this foray into company-sponsored "journalism" looks to be about as credible as Verizon's short-lived exploration of the medium (in which topics like net neutrality and government surveillance -- the things EVERYONE was/is writing about -- were verboten), the more interesting part of the The Register's article is the second half.

Apple has introduced its own "News" app, and now it's looking to fill it with content. Other people's content. Presumably handpicked from thousands of Apple-friendly bloggers and journalists. Mike Ash received an emailed "invitation"/"agreement" from Apple informing him that his RSS feed was headed towards Apple's News app, with or without his permission and that if he had any problem with the terms of the agreement he never had a chance to agree to, he should opt out.

When your RSS content is included in News, here are the terms that will apply:

• You agree to let us use, display, store, and reproduce the content in your RSS feeds including placing advertising next to or near your content without compensation to you. Don’t worry, we will not put advertising inside your content without your permission.
• You confirm that you have all necessary rights to publish your RSS content, and allow Apple to use it for News as we set forth here. You will be responsible for any payments that might be due to any contributors or other third parties for the creation and use of your RSS content.
• If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim.
• You can remove your RSS feed whenever you want by opting out or changing your settings in News Publisher.

Some of those receiving similar emails may have tuned out during the fine print recitation and missed the last line.

If you do not want Apple to include your RSS feeds in News, reply NO to this email and we will remove your RSS feeds.

Apple obviously doesn't understand the word "agree." When you make something opt-out only, there's no agreement being made. A certain percentage of those targeted by these emails will never read them. Others may never receive the email at all. And yet, Apple claims they've "agreed" to these terms. Others that fail to see the opt-out wording will also be considered "agreeable."

As Ash puts its, this isn't an "agreement" in any sense of the word. While providing an RSS feed cedes a certain amount of control over content distribution (in all honesty, Apple never needed to half-assedly ask for permission to add the feed to its News app), it doesn't automatically entitle Apple to pile on additional stipulations that can only be disagreed with by the recipient taking additional steps -- rather than taking affirmative actions that would indicate a willingness to comply with the "agreement's" terms.

I want everybody to know about the ridiculous stunt Apple is trying to pull here. I'd have been perfectly happy if they had just sent me an e-mail saying they were going to include my feed, and if I didn't like it I could e-mail to opt out. I'd even be happy if they didn't even give the option to opt out! After all, having an RSS feed in the first place is an implicit opt-in to that sort of thing. But trying to dictate terms on top of that while telling me that I automatically agree to them unless I opt out is unacceptable, even if the terms themselves are relatively benign.

This is no way to run a service… or a business. It's very likely Apple carpet-bombed the internet with similar emails, opting-in plenty of strings-attached content without the creators' permission or actual agreement. This is nothing but laziness, tinged with a hint of entitlement. To be "selected" by Apple for its News app is apparently supposed to be an honor. Making it opt-out saves it the hassle and expense of staffing a response team to handle opt-in emails. But that would mean sending actual invitations, rather that presuppositions that let Apple do what it wants without the explicit permission of those whose content it's using.

Filed Under: agreements, news reader, opt out, rss
Companies: apple

Investigative Journalist Claims Her Public Tweets Aren't 'Publishable;' Threatens To Sue Blogger Who Does Exactly That

from the hubristupidity! dept

Update: In case this isn't enough, there's a follow up to this story, as Teri Buhl is apparently not a fan of our writeup.

Choose your battles carefully. This warning/advice is more relevant than ever in an era of instant feedback, social media and thousands of pages of "relevant results" microseconds away. Here's a small story of how not to deal with a problem caused by your own actions.

Mark Bennett, a Houston criminal defense lawyer, was recently pointed in the direction of a rather inexplicable statement attached to a Twitter profile. Teri Buhl, an investigative journalist specializing in Wall Street, has this wording on her profile page:

A friend of Bennett's (@gideonstrumpet) asked, "What does that mean?" Buhl replied:


Gideon sensibly replied "ok thanks. I don't know how you prevent that, though. I could write a post quoting you."

At this point, Buhl went "legal," responding that she would sue him because she "stated" her tweets are not "on record comments." And she certainly could, although one wonders who would take her case. Gideon asked for a few second opinions on the legality of Buhl's claim, and got answers from these two gentlemen whose names are likely familiar to Techdirt regulars, Marc Randazza and Popehat.


So, we have someone thinking their public tweets are private property, and therefore lawsuit-bait if anyone attempts to "quote" them. While Twitter's TOS assures users that their Tweets are their property, it's quite another thing to state something publicly and then claim you don't want it quoted. Would a retweet be a violation of Buhl's statement? After all, it's a "direct quote" originating from another account. What about embedding the tweet? Still a problem? Even if Buhl's claim wasn't baseless, she'd still have a hell of a time enforcing it. If you don't want something you said going public, why on earth would you use a very public platform like Twitter to say it?

It gets uglier from there, though. Buhl decided to continue her legal threats via email shortly after Mark Bennett posted screencaps of her tweets.


This prompted Bennett to do a little digging. For someone who's so concerned with retaining strict control of her information, Buhl certainly doesn't seem to mind throwing around other people's information -- even the contents of a teenage girl's personal journal.

A New Canaan woman police say posted personal and sexually explicit information on Facebook about her boyfriend's 17-year-old daughter was arraigned Tuesday in state Superior Court on charges of second-degree harassment, second-degree breach of peace and interfering with an officer.

Teri Buhl, 38, of 81 Locust Ave., appeared briefly before Judge Maureen D. Dennis with her lawyer, Christopher W. Caldwell of Norwalk...

Buhl surrendered on Oct. 27 at New Canaan police headquarters after learning that a warrant had been obtained for her arrest. She was released after posting a $5,000 bond.

Here's how Buhl allegedly set about "publishing" someone else's much more private "statements:"

A look at the documents that led to the warrant and arrest tells a disturbing story of Web-based strong-arming and privacy invasion from a woman who knew her victim and attempted to disguise her own identity.

New Canaan police Youth Bureau Commander Sgt. Carol Ogrinc said in an affidavit that the girl and her father, Paul Brody, came to police June 24 to report that someone using the name 'Tasha Moore' had posted personal notes from the girl's journal on Facebook.

The girl said she kept the journal in her dresser drawer in her bedroom, and that she wrote the notes shown on Facebook last April. The girl said she had replied to the e-mail address provided by Moore on her Facebook page, and had told Moore to stop posting personal information about her or she would contact police.

Moore reportedly answered that she welcomed the legal action and knew the girl's father was a corporate lawyer. Moore said she didn't think the girl would contact police because then her father would find out about the embarrassing information from the journal, according to Ogrinc's statement.

As Bennett points out, it's apparently OK to publicly post information from a minor's personal journal, but not OK to post a public Teri Buhl tweet anywhere else on the internet.

Buhl has finally done what she should have done a long time ago and taken her account private. This will likely be the end of this story as Buhl has probably realized she's on very shaky ground. (This belated tweet captured via her page at Muck Rack seems to confirm this.)


With a trial date set for March 22nd, she may not have time to fight another legal battle. Not only that, but if she's going to go after "republishers" like Bennett and Gideon, she's also going to need to free up time to go after less human foes like favstar, Topsy and yfrog.

Here's a suggestion: don't antagonize people by attaching implicit legal threats to your public profile. All it does is attract the kind of attention you don't want -- for instance, another public airing of your alleged illegal actions. It doesn't win you any new friends or followers and it certainly does very little to raise anyone's estimation of you. Instead, it makes you look like exactly what you are -- someone who's going to slip into "sue" mode at the drop of a tweet.

Filed Under: agreements, contracts, public information, quoting, teri buhl, tweets

Australian Artists Upset That Australian Tourism Campaign Crowdsourced Images

from the overreact-much? dept

Reader mick writes in to alert us to a group of photographers in Australia who seem absolutely livid that the government's latest toursim campaign sought to crowdsource photographs that could be used as part of the campaign. To me, that seems like a perfectly reasonable idea -- in fact, a good idea in engaging people and getting them to take part in the campaign. But the problem comes from the fact that Tourism Australia asked people to let it use the photographs for free. That's when a bunch of groups went ballistic:

The National Association for the Visual Arts, the Australian Copyright Council and the Arts Law Centre of Australia are protesting the conditions.

They are demanding the agency relicense any photographs used in the campaign to pay royalties to the artists.

Let me get this straight. Even though the whole thing is completely optional, and photographers, who don't like the terms, have every right to just not participate, they're pissed off that others can participate -- of their own free will -- by letting the Tourism campaign use their photographs freely. If the photographers don't mind the terms, why should others? The reality is that these groups are trying to stomp out amateur competition. This whole hissy fit is about limiting the market to professionals, and keeping the amateurs out.

Arts Law Centre of Australia chief executive Robyn Ayres says the copyright rules set a "worrying precedent".

"The creative industries play a huge role in our economy and our culture," she said in a statement.

Of course the creative industries play a huge role in the economy and culture. But what does that have to do with willing participants letting the Tourism campaign use their images for free of their own free will?

"Refusing to license these photographic works in an appropriate way sends a message that it (government) does not value creative work in the same way as it values other economic assets."

No, it shows that the Tourism group realizes that some people are more than willing to contribute their works for free for reasons other than direct payment.

Filed Under: agreements, australia, crowdsourcing, free, royalties, tourism

Photographer Thrilled That Apple Using His Photo As Default iPad Background, Despite No Official Agreement

from the see,-it's-not-so-bad... dept

In my experience, there is a group of photographers who are even more extreme in their copyright views than groups like the RIAA and MPAA. It's certainly not all (or, perhaps, even most) professional photographers who are like this, but there is a group of very, very adamant photographers who absolutely freak out about any use of their works without compensation. They even get upset if they feel that another photographer isn't getting enough compensation for every single use of a photograph. Since they tend to be independent, they don't have the clout of a large organization like the RIAA, but they make up for it in aggressiveness. We've see it in the discussions that have compared microstock photo websites to drug dealers and even in response to our recent post about a misguided takedown of a guy who was promoting stock photo images on his blog -- where some photographers were quick to call us idiots. Yes, how dare we suggest that such a use of stock photography is fair use, despite legal precedent suggesting a decent chance that such a blog was legal. Since their response doesn't go beyond calling us all "idiots," it's difficult to judge the reason, other than they just don't like it.

Given all that, I found this story about the photographer, Richard Misrach, whose photograph was chosen by Apple to be the default wallpaper for the iPad, quite interesting. That's because, while he's been talking to Apple for a while, the company only came to him days before the launch to ask to use the image, and no agreement had been worked out by the time the product launched with the photo there. But unlike some, Misrach didn't freak out. He still thinks it's cool, and knows that it'll work out:

"The funny thing is that I don't even have a contract with them yet, so they must have decided on it at the eleventh hour," Misrach says. "I'm sure they'll send me one quickly now. But I'm very happy, I'm sure it's fine, and the terms are good."

Now, yes, this is a bit different, since there is a contract on the way, but he doesn't know what the terms are, and he doesn't seem to care that much, recognizing that this is good no matter what. And the same thing is true of blogs, like the one we discussed above, whose sole purpose was to promote stock images and direct people back to the site to purchase the rights to those images.

Filed Under: agreements, copyright, ipad, photographs, richard misrach

Another Court Finds 'Browserwrap' Terms Are Enforceable

from the so-which-is-it? dept

Just a few months ago we wrote about two separate lawsuits involving "browserwrap" or "clickwrap" agreements and whether or not they were enforceable. In the first one, an agreement was found to be enforceable even if the user on the website wasn't forced to view it, but it was just a link away. That seems to be the same view held by the court in a new ruling, that says that even if the agreement is on another page and the user never reads it, the fact that there's a link to it makes it enforceable. Frankly, I have a hard time seeing how that makes much sense, but it seems to be the way the courts are leaning. Of course, it's not all courts, though. Because the other case we wrote about a few months ago found exactly the opposite, saying that such a "browserwrap" agreement is not enforceable because the user was not adequately notified.

Filed Under: agreements, arbitration, browserwrap, eulas

Overstock Told That 'Browserwrap' Agreement Is Unenforceable

from the or-is-it? dept

It's still not entirely clear what online agreements are actually enforceable and which aren't. We've seen cases go both ways, with a recent ruling even noting that terms that are a hyperlink away, rather than on the agreement page itself, may be enforceable. But the latest case, involving online retailer Overstock went in the other direction. A court found that Overstock's arbitration requirement was unenforceable, because, as "browserwrap," the user was not adequately notified. Eventually, it seems that someone's going to have to make it clear what sorts of online terms are actually enforceable (if any). Until then, we're going to see a lot more lawsuits like this one.

Filed Under: agreements, arbitration, browserwrap, eulas
Companies: overstock

UK ISPs Looking To Work With Entertainment Industry; But What About Consumers?

from the something's-missing... dept

Slashdot points us to the news that, over in the UK, various ISPs are closing in on some sort of an agreement to "deal with" unauthorized file sharing. A representative for the ISPs notes:

"Some kind of agreement between rightholders and ISPs can be reached. Everyone wants to work together to make legal online models work."

Of course, that's rather misleading on a few significant points:

• It's not everyone who is working together here. Consumers are entirely left out of the equation. Consumers end up being worse off in these scenarios, and open to losing their internet access or potentially other charges due to weak evidence. Plus they end up paying more for less music.
• Musicians in many cases (the labels certainly don't represent musicians' interests) are being left out here -- especially those musicians who have learned how to embrace free music and use it to their advantage. Those musicians will end up getting punished for their innovation by having industry agreements backstop obsolete business models.
• There's no reason why ISPs should be involved. The recording industry's problem isn't that ISPs aren't helping out, but that the recording industry refuses to recognize the changing market that necessitates a different business model.
• An agreement, inevitably means both sides gave up something, and it continues the myth that business models in this market are antagonistic. It ignores the fact that there are win-win business models, such as those employed by Trent Reznor, where no one is worse off. Instead, these sorts of agreements make everyone worse off.

Rather than trying to come to any "agreement," it's about time that the entertainment industry realizes that the market dynamics have changed -- for the better -- and if they looked around they'd realize there are tons of opportunities to embrace. Instead, they're focused on locking down old business models, shrinking the overall potential market and making the overall situation worse for everyone.

Filed Under: agreements, copyright, isps, uk