
I Do Not Agree to Your Terms - ingve
https://www.mikeash.com/pyblog/i-do-not-agree-to-your-terms.html
======
declan
It would be one thing if all Apple did was send publishers email saying: "We
love your writing. We plan to include your RSS feed in Apple News unless you
opt-out (here's how to do it). We will respect your copyright and will only
display fair use excerpts."

But Apple didn't do that. Instead their email includes language about
"indemnifying Apple" from legal liability. It also includes open-ended
language about "placing advertising next to or near your content...without
compensation to you" in a way that might ordinarily require a license. I
wonder if this language would be viewed as legally binding if Apple can
demonstrate that the recipient, say, logged into News Publisher to check their
settings but chose not to opt out.

On the other hand, as a practical matter, I suspect bloggers will not be
lining up to sue Apple in federal court...

[By way of disclosure, I'm a founder of
[https://recent.io/](https://recent.io/), which is in the same space as Apple
News. We plan to submit our iOS version for Apple's TestFlight beta testing
program this week. Fingers crossed!]

~~~
lisper
> I suspect bloggers will not be lining up to sue Apple in federal court...

Why not? It should be lucrative. If Apple publishes my content without a
license that's a clear copyright violation. I should be able to collect up to
$250,000 per incident.

~~~
wwweston
As the author states, though, having an RSS feed is arguably an implicit
license for what's in it. There are arguments against that too, I suppose, but
they have a lot in common with the idea that accessing a hyperlink without
permission is a violation.

Apple's on good neighbor ground (and probably good legal ground) acting as an
RSS aggregator while giving people a chance to opt out.

They're on neighbor-from-hell ground in handing third parties some weird auto-
invoking license for using that party's content. This is the kind of behavior
I expect from teenage fan posting a song from a band they like on YouTube,
except the teenager is likely to recognize they don't hold any rights and
aren't in any position to dictate a license before posting it.

~~~
tracker1
I wonder if a similar email would work as a defense for distributin OSX on
non-apple hardware... well, we sent you an email declaring the terms, and you
didn't opt-out... and given you've sent similar emails with similar landmines,
you obviously find this to be acceptable in practice, so...

~~~
girvo
Only issue with that is that judges really don't like "cute" ways of using the
law, so it'd be a very difficult job to have it hold up in court.

------
notahacker
Look at it from the company lawyers' perspective. They've watched Google have
all sorts of legal trouble with companies that objected to Googlebot picking
up their news content despite the fact they could have opted out by modifying
their robots file (if they didn't want to have their cake and eat it by
receiving traffic from Google indexing their headlines whilst suing Google for
having the temerity to index their headlines...) So even though Apple are
going after a market where a presumption of "right to excerpt" is even less of
a grey area since RSS's raison d'être is to allow third parties to syndicate
site-owner controlled excerpts of content, they're still covering their ass by
publicising their intent and giving feed owners an easy avenue to opt out.
Additionally they point out they might slap banner ads on the aggregation
service, and you might want to sort out any copyright/legal issues in advance
because they're not accepting any responsibility for it other than passing the
message on. Apple aren't doing anything any other aggregations service doesn't
do without publicising any opt-out process they have, and they're not imposing
any burden on the author they don't already face.

Sure, the tone could use a little work, as could everything written as a legal
document ever, but they appear to have managed to do cover their ass in an
email which (unlike standard EULAs, especially Apple's) is actually short
enough to be readable. I'm not really sure this is one for HN to be up in arms
about.

I have _more_ issue with the companies that provide RSS feeds whilst
simultaneously displaying terms and conditions prohibiting creating hyperlinks
to their website without written permission, which is the sort of weird
illogic of the legal departments of traditional publishers this dubiously-
drafted message is really aimed at.

~~~
ScottWhigham
_I 'm not really sure this is one for HN to be up in arms about._

FTA: "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."

I guess I don't understand why you do not take issue with this line. Apple has
"enrolled" him in an indemnification clause without his consent or request.

~~~
abakker
Isn't this standard though? If I link to a website's RSS feed because it is
interesting, and that website then posts something illegal, wouldn't my site
be indemnified?

Isn't this just like saying "the views expressed here aren't endorsed by our
corporation, so don't hold us responsible for the content, only the mechanism
by which it is provided" ?

~~~
ScottWhigham
I couldn't disagree with your comments more. No, this isn't standard -
attempting to auto-enroll someone into an indemnification clause that has no
limits is not 'standard'. And saying '... don't hold us responsible' is the
wrong way to look at it - instead, it's more like saying '... if you do hold
us responsible, the content creator is the one who actually has to pay the
charges."

------
mcv
I really doubt that mail from Apple is in any way legally binding, but just in
case it is, send them a mail (preferably at a different email address) stating
that unless they reply with "NO", they agree to pay you $10,000 per month for
including your feed in their news.

~~~
x5n1
Hear back from their lawyer accusing you of extortion.

~~~
tadfisher
That's not what extortion is.

~~~
x5n1
Well that e-mail is not a contract... They don't have the brightest bulbs
working for them.

------
ErikAugust
Let me get this straight:

Apple comes out with an Ad Blocker for Safari. Then it comes out with Apple
News, which places ads next to RSS content, and doesn't compensate the author?

Come on, man. That is infinitely upsetting.

~~~
kaolinite
If you enable adverts next to your content, you get a cut of the profits
(presumably 70%). By default, there are no adverts.

(Updated the comment to remove uncertainty now that I have a citation:
[https://developer.apple.com/news-
publisher/](https://developer.apple.com/news-publisher/))

~~~
ErikAugust
Struggling to see where that is mentioned anywhere in the article.

~~~
kaolinite
It isn't, but I seem to recall it being mentioned either in the keynote or in
the reporting after WWDC.

Update: [https://developer.apple.com/news-
publisher/](https://developer.apple.com/news-publisher/)

> Monetization is made simple with iAd, Apple’s advertising platform. Earn
> 100% of the revenue from ads you sell, and 70% when iAd sells ads for you.
> iAd provides campaign management, targeting and reporting capabilities that
> help drive your business.

So that's very fair, they don't take a cut if you sell the adverts yourself -
otherwise they take a (industry standard?) 30% cut.

~~~
mikeash
How does that square with "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."?

~~~
kaolinite
Honestly no idea. I'd imagine that's just in case they change their mind? The
email itself was very poorly thought through (and is honestly quite arrogant).

~~~
mikeash
It seems common for big companies to put things in their legal agreements that
are stupid and unfair and are never intended to actually be used. I don't know
why.

~~~
eli
Because there's usually no downside? The same reason people put those goofy
"this message is for the intended recipient only..." notes in their sig file.
It almost certainly has no legal force ever but it doesn't hurt.

------
granos
You can't agree to a contract by inaction.

I suspect that whether Apple violates his copyright would come down to exactly
how they implemented the system. If they pulled posts directly from his
servers they would probably be ok. If they cache/host the content themselves
it could get a bit murkier.

~~~
ikeboy
>If they cache/host the content themselves it could get a bit murkier.

([https://en.wikipedia.org/wiki/Field_v._Google,_Inc.](https://en.wikipedia.org/wiki/Field_v._Google,_Inc.))

------
nothrabannosir
_> I don't like the idea of showing ads next to my content in this situation,
but I'm pretty sure I have no right to control that._

You have every right in the world to control that. It's called copyright. If
you choose a license for your content that prohibits putting ads next to it,
then there you go: you used your right to control that.

Not saying it's practical, or business wise, or good PR, or, ... But
definitely your right.

~~~
TillE
The default "license" with copyright is basically "all rights reserved".
Whenever you start copying or distributing someone else's material without
permission, you'd better be pretty confident in a fair use exemption or some
other legal argument.

~~~
ikeboy
([https://en.wikipedia.org/wiki/Field_v._Google,_Inc.](https://en.wikipedia.org/wiki/Field_v._Google,_Inc.))
might apply here.

~~~
MikeTaylor
That is true; but surely provision of an RSS feed constitutes a presumptive
licence to redistribute.

~~~
wlesieutre
Why would serving RSS to RSS readers imply any different a license than
serving HTML to a web browser?

------
dhimes
Brilliant response. They send him a letter declaring a legal contract on his
rss feed unless he specifically declines, he declines via rss feed- which the
lawyers will probably not read.

I wish I was this clever.

~~~
mikeash
This makes me think of Fight Club:

Tyler Durden: Oh I get it, it's very clever.

Narrator: Thank you.

Tyler Durden: How's that working out for you?

Narrator: What?

Tyler Durden: Being clever.

Narrator: Great.

Tyler Durden: Keep it up then... Right up.

Anyway, glad you like it.

------
ChuckMcM
The terms, as stated, are ridiculous. If you write an article that gets picked
up for the NY Times, they pay you for it. If you write an article for a
magazine, they pay you for it. Once they do, and you've granted them a partial
copyright (in this case most likely second serial rights) then every time they
pull an article to include in their "news" they should pay the author.

The much better way to do this would be, "We'd like to include your RSS feed
in our News application, if anyone reads an article that you have provided to
us we will make a one time payment to you of $X (say $250), in exchange for
that payment you give us the right, in perpetuity, to continue to provide
access to that article though our News application."

Basically if you're writing is bringing people to the News application they
should pay for that. And once they have, they can monetize there end of it
just like newspapers and magazines by putting ads on the site or adding other
junk.

It sounds like they are trying to construct some novel theory[1] where if
someone managed to find your blog and read it they wouldn't have paid for it,
so Apple doesn't need to pay for it if they are using it to attract people to
their app.

So lets look at it from an information economics perspective, the author's
article derives its value from the author's artistic expression. Nobody else
is going to write it just like they did, or how they did. The author "spends"
that value to attract readers to the blog, and readers "pay" for that value by
by exposed to advertisers who have paid the author to be on their page. So you
get that?

The reader "buys" their content by agreeing to be exposed to advertising.

The author "sells" their content by providing access to their readers to
advertisers.

The advertiser "buys" access to the content by paying the author when a reader
interacts with the ad.

Apple is trying to step in, get the content for free, bring readers to their
News App and then sell access to their readers to the Advertisers. You can see
that without the Author's content there is no "value" to readers in the news
app. Authors who agree to this are simply dropping money into Apple's lap.

[1] It isn't really novel people try to rip off artists by offering them
'exposure' all the time.

------
AnimalMuppet
Disclaimer: IANAL.

But I seem to recall there was something like this with book clubs, that
they'd send you a piece of mail, and you had to reply to opt out. Otherwise
they would start sending you books, and charging you for them.

That kind of garbage became illegal in the 1970s or thereabouts. I can't
imagine that doing it via e-mail makes it any more legal.

The only leg that Apple has to stand on is that it's going to be really
difficult (expensive) to sue them. I'm pretty sure that the actual law is
_not_ on their side here.

~~~
wkdown
Are you referring also to Columbia House and BMG in the 90s? Sign up, get
seven CDs for a buck, then you forget to cancel and they send you "A Barry
Manilow and Kenny G Christmas" for $18 plus S&H.

This still happens online with an X-day trial of something, fine print says to
cancel or be charged $XX.XX/mo. Good luck figuring out how to cancel, though.

~~~
thesteamboat
The key phrase here is _sign up_. I can't just send you an unsolicited text
message subscribing you to Cat Facts (only $29.99/month!) unless you follow my
intricate opt-out scheme.

------
markbnj
IANAL but I can't see how not replying to their email could possibly bind the
publisher to anything. In effect Apple is using the content absent any
agreement, and simply trusting that most people will be thrilled and agree out
of hand.

~~~
Nadya
The legal system is a bit flawed in this regard. Biased towards "strongarmers"
with deep enough pockets to hold a lawsuit.

While I don't think the email is legally binding unless "signed" (responded to
in an affirmative manner) - they could still use it to take you to court
regardless over it. Many people would lack the funds needed to defend
themselves so wouldn't bother trying to defend and are therefore forced into
acceptance. Unless you can find a pro-gratis lawyer or a "no win, no fees" to
take the case.

The extra terms are mostly to cover Apple's ass in case your content is
illegal. If you get sued for your content for whatever weird, legal reason
that might happen and Apple gets listed for providing access to your content
through News (would that even happen?) and the case gets through and _somehow_
Apple isn't excluded from the case (even if listed, I don't see how they would
be found liable) you agree to pay for them.

Which is definitely something you don't want to do. The likelihood is
small/impossibly rare or maybe even _impossible_. But Apple's Lawyers want to
cover Apple's ass "just in case".

Outside of a few restrictive licenses - they can already display content next
to ads without your permission. Mikeash would either need to properly license
their blog or decline rights to Apple.

By writing his blog he has identified that he has read the e-mail. Although I
don't think it's legally binding at that point (regardless if it says he
agrees to it unless he opts-out), IANAL. If a lawsuit ever occurs over the use
of his content and Apple is involved - attempting to prove he has read their
e-mail to try and enforce the terms would mean they have read his blog to know
he has read the e-mail, which means they have seen his denial of their terms.
A catch-22.

------
brillenfux
It's funny how they don't even give a damn about your copyright. If you did
this with Apples content you would get shit left and right, but since it's
Apple doing it to you this time they can just assume your consent by
implication.

Glorious!

The state of copyright. Right, Fucking, There!

~~~
oneeyedpigeon
I wonder what Apple would do if we all sent them an email saying we'll
republish their content alongside our own advertising unless they send us a
personal letter requesting otherwise. Presumably, they'd play ball - same
rules for all, right?

~~~
brillenfux
Absolutely! I would just go ahead. Good Luck :)

------
cjensen
I'm not seeing a problem here. There is tons of precedent for taking a RSS
feed and displaying advertising next to it. Google Reader did it. NetNewsWire
did it.

Having an RSS feed implies that you are okay with someone copying what is
found in the feed and displaying it to users. Since there is no technical
mechanism defined to flag allowable uses, there is presently no way for an RSS
author to signal intent or add conditions like "may not be commingled with
advertising."

It seems to me that Apple is just providing a _heads up_ to the RSS author
what is going to happen, and giving them the chance to opt-out ahead of time.
Apple could have done this without asking.

The only weirdness is making it seem like the RSS author has accepted terms
unless they respond. That was a poor choice. They should have said "this is
how we will run things; to stop us from using your RSS feed, click this link."

~~~
brillenfux
Putting out a RSS feed does by no means imply consent to third-party use. The
same way like putting out pictures doesn't mean everybody can use them.
Christ!

~~~
cjensen
There are at least a dozen third-party Feed Aggregators who disagree and feel
that consent is given. Why is this only an issue now?

~~~
detaro
Because they make it very much sound like they derive obligations of the
publisher from it. Which as far as I know other aggregators haven't done
without proper sign up.

 _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._

Could potentially be a lot of additional trouble if they get a hold of a feed
that wasn't intended to be publicly accessible.

~~~
notahacker
If you must create a convenient channel to disseminate material that leaves
you commercially exposed when it actually does get shared, it's probably best
you don't make it visible to web crawlers.

The only thing Apple is doing differently here to many bots that have boldly
gone before is sending a warning message.

------
HelloMcFly
Honest question here: if you're pushing your content out via an RSS feed, does
every RSS aggregator have to get permission to use it in their aggregation?
How does that work with the thousands of other RSS aggregators?

~~~
dsr_
That's not how an RSS feed works.

An RSS feed is not a push. It's exactly the same as any other web page: you
must pull on it to get the new content.

Sure, from the point of view of a user of an aggregator, the aggregator went
out and did the work automatically. Whether it is pull or push is not obvious.
But the fact remains, it is all pull.

~~~
HelloMcFly
> An RSS feed is not a push. It's exactly the same as any other web page: you
> must pull on it to get the new content.

Fair enough, though I think the semantic distinction doesn't really address
where I'm confused. My two main questions being 1) does every aggregator need
a site's permission to use their RSS feed, and 2) why else would you publish
an RSS feed if not to make your content accessible across other platforms /
sources?

An RSS feed is a pull, sure, but it seems like one is pulling content that the
creator has put a "pull here" sign on.

------
timtas
This is fun. I mean it's fun to ponder the legalities. Let's try to be
explicit about what has happened here:

1\. Publisher implicitly offers Syndicator a license to republish his content.

2\. Syndicator accepts the implicit license agreement by republishing the
content.

3\. Syndicator attempts to amend the implicit agreement by transmitting
proposed amended terms over an unreliable channel and gain implicit acceptance
by silence.

4\. Publisher counters with an explicit refusal of the terms over another
(more) unreliable channel not only refusing the amended terms but also
rejecting the prescribed means of refusing them.

Let's say something blows up, and this ends up in court. How would it come
down???

It seems obvious the terms were never agreed if either:

1\. Syndicator fails to prove that Blogger ever read the email, or

2\. Publisher can prove that Syndicator read his published response and yet
continued to take his feed.

Obviously, the first condition is not met because Publisher said so. We can
only speculate on the second. Making it to page one of Hacker News and Hacker
Newsletter certainly helps Publisher argue that the second condition is met.

But what if neither condition is met? Can a syndicator lob terms over a
publisher's fence and, even they are proven to be read, consider silence to
constitute agreement?

I'm not a lawyer, and I have no idea how it would go. I'd guess there's some
obscure case law from the '50s or something that would make or break this
case.

------
tempodox
This is evil strong-arm practise. Apple is obviously counting on the odds of
publishers not being able to sue them over this patent abuse. All you could
achieve is probably some form of cease & desist, but no damage payments
(IANAL).

Is Apple losing it? I can't imagine them performing a stupid fuck-up like this
five years ago. This botch job just makes them look like evil bullies to
everyone involved.

------
Nadya
>I have no idea if you'll ever see this declaration, but that's just like
yours, so I think it's fair.

The one caveat to this is that he is responding to their email, showing that
he has seen and read it.

IANAL - but because he provides an RSS Feed, Apple can already use it. The
terms that they put forward are things they _already can do_ with access to
the RSS Feed. They are allowing creators to _opt out_. I don't see how Apple
is in the wrong here. While the terms may seem like they are trying to take
something.

>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.

This is covering Apple's ass in case your content receives a legal claim and
Apple is included for providing access to your content. This essentially is
"you agree to not shoot the messenger".

>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 you have a featured post or pay someone to post content for you - Apple is
not responsible paying for them. This is, again, just covering their own
asses.

>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.

They can do this anyway without your permission. The email is providing you a
way to opt-out of this.

>You can remove your RSS feed whenever you want by opting out or changing your
settings in News Publisher.

If you wish to remove your RSS feed from News they're letting you know how.

------
rspeer
In all the WWDC hype I didn't actually hear about Apple News.

This is interesting. Is Apple going to actually revive RSS as a tool for
reaching the masses? (As opposed to a few persistent geeks, of which I'm one
but I can tell there aren't that many overall?)

Bullshit legalese aside, that sounds like a great thing.

~~~
ErikAugust
Placing ads next to people's content while not compensating them is a great
thing?

~~~
rspeer
RSS/Atom is a useful technology with no adequate replacement, and I have no
patience for your copyright maximalism.

------
bonaldi
Does the RSS spec even include the ability to include machine-readable
terms/licencing in a feed? Given its source (and the gentler world in which it
and Atom were born) I'm guessing not, but it seems like a big omission.

~~~
bduerst
Not machine readable. There is a rights/copyright standard field, which
doesn't influence behavior in an automated way.

------
anon_adderlan
Alright, let's break it down.

> 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.

Other RSS readers display ads near your content, and Google caches RSS feeds.
So unless these are unusual use cases, Apple does not need your consent here,
as it's implied by creating an RSS feed.

> 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.

Apple is saying they're not responsible for any copyright issues involving
your RSS feed. This is also reasonable and already assumed to be the case, so
they don't need your consent here either.

Now the contentious bits.

> You can remove your RSS feed whenever you want by opting out or changing
> your settings in News Publisher.

> 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.

These are just (poorly worded, thanks lawyers) opt out _options_. There's
nothing in this 'contract' which requires your consent or legally binds you in
any way beyond what the law already does. Apple is simply offering two methods
of opting out, and if anything is giving you MORE control over your feed than
other RSS readers do. That is, unless you feel that every RSS reader must get
permission from each RSS feed they want to cache and render.

I've dealt with a lot of technology contracts as of late, and this is a storm
in a teacup. If you want to go after something that's genuinely harmful, then
start with those 'arbitration' clauses that are in damn near every electronics
and service contract today.

------
an_account_name
No meeting of the minds, no contract. Unless you take some positive action to
confirm your acceptance of Apple's terms, there's no contract.

(I am not a lawyer, and this is not legal advice).

------
DannyBee
Generally, this kind of agreement has to be signed and in writing :) So this
is not going to go well for Apple. I suspect they know this though.

------
benmanns
_> But, of course, the lawyers have to get involved._

The nonsense that follows would suggest that the lawyers were _not_ involved.

~~~
seivan
I thought it would be reasonable to assume to whatever nonsense that followed
was in fact caused by lawyers.

I am however not saying that is the case, I am just saying the assumption is
reasonable given... lawyers... reputation.

~~~
rosser
_Some_ lawyers. I know more than a few lawyers who aren't — or at least don't
continually make the choice to profit off this kind of — clownshoes bullshit.

------
huuu

      if(User-Agent == "Apple") {
        showNonsenseNewsFeed();
      } else {
        showNewsFeed();
      }
    

But serious: wouldn't it be enough to place a use policy or terms of use on
mikeash.com restricting the use of the feed for commercial reasons?

~~~
mikeash
It would be enough to just reply "NO" to their e-mail. The problem isn't
getting out of their system, but just how they're trying to do business at all
here.

------
glenra
I'm sensing poor reading skills. This seems to be the offending bit:

 _" 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."_

That does not ACTUALLY SAY "you agree to indemnify Apple." It's a conditional
with a lot of preconditions but even if they were all met it obviously doesn't
constitute a legal requirement. It's saying "if it happens to come up that
somebody sues us, we'll help you resolve the issue, which may involve us AT
THAT TIME asking you to indemnify Apple as part of some sort of agreement we
haven't yet put forward."

It's a heads-up. At some point in the future IF legal exposure becomes a
problem they expect that they will have a policy about it which would involve
the publishers deliberately and explicitly agreeing to an ACTUAL CONTRACT in
which both sides get some tangible benefit. This email is not that contract.

~~~
mikeash
The entire thing is offending. They sent me a bunch of terms which I'm
expected to implicitly "agree" to unless I explicitly opt out. As I say in the
title, I do not agree to the terms.

Maybe they don't need me to agree in the first place. But the fact that
they're trying to get me to agree in this fashion is idiotic. The content of
the supposed agreement is almost irrelevant.

