Mike Ash writes a widely read development blog, which he makes available as an RSS feed. Mike got an email from Apple letting him know that they planned to include his feed in their iOS 9 News initiative. Nice to be noticed, right?
These are the terms Apple included in the email:
- 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.
Pay special attention to that “indemnifying Apple” item. It’ll come back up in a minute.
The email continues:
> 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. [emphasis Apple’s]
Mike continues:
> Let me get this straight, Apple: you send me an e-mail outlining the terms under which you will redistribute my content, and you will just assume that I agree to your terms unless I opt out?
>
> This makes typical clickwrap EULA nonsense look downright reasonable by comparison. You’re going to consider me bound to terms you just declared to me in an e-mail as long as I don’t respond? That’s completely crazy. You don’t even know if I received the e-mail!
I am completely mystified by this email. If I got the email, I would carefully check the headers to make sure this was from Apple. It is so tin-eared it sounds almost like a phishing attempt of some kind.
To be clear, the issue is not about Apple’s right to use Mike’s publicly available feed. It is about trying to impose contractual or license terms without some indication that both parties have agreed to those terms.
When you install a new piece of software, you have to click some form of “I agree” button. Whether that holds water in court is a matter of interpretation (sometimes a different interpretation in different states/jurisdictions). But the idea of imposing contract/license terms without some action on Mike’s part is, at the very least, unfair.
If Mike never got the email, would a court ever rule that he had some obligation to indemnify Apple in the case of a lawsuit? Does the fact of the email being sent provide some legal cover for Apple to claim indemnity? Perhaps, but this seems incredibly one sided.
This one sided opt-out required approach to gathering content just doesn’t seem like Tim Cook’s Apple.
Wow. I remember a while ago (like System 7 while ago) when someone, somewhere explained the logic behind dialog boxes. The bold/higlighted button, the one you could just hit Return to select, was always ‘Cancel’ because that’s the safest response. Saying Okay might do something that you couldn’t undo, but selecting Cancel gave you a moment to be sure. The easiest response was always the safest. What happened to that Apple? When is opting out ever safer than not opting in in the first place? This is really surprising when you consider all the recent emphasis from Apple on privacy. I think Apple should have to agree to the terms of his RSS feed.
As much as I like Apple, that feels sleazy. Really surprised…
“Bozos hire bozos.” I wonder who hired the head of the department that drafted that email.
Maybe I’m missing how this works.
Wouldn’t the RSS owner have to make a link to the RSS feed available? If you weren’t okay with the terms, you just wouldn’t point Apple to the feed or make it available to crawlers (or Apple’s specific crawler). Isn’t the point of RSS syndicating content?
As far as indemnifying Apple, in the context of News and aggregating content, Apple’s already indemnified under the law within reason. Why wouldn’t they be? They’re not at fault. The RSS owner is (maybe). My guess is they’re just making the RSS owner aware.
Otherwise, what is objectionable within the terms? Seems pretty agreeable and free of legalese.
(1) You’ve made your RSS available. We’re looking to use it in ways xyz and not ways abc. If it’s a problem, reply back to this email.
(2) Don’t publish someone else’s work in your feed without permission. If you do, and the owner of that work has an issue with it, it’s on you to pay the owner rather than Apple.
(3) If Apple gets a complaint, they’ll let you know so the dispute can be resolved.
(4) You can stop participating any time you want.
I’m not a lawyer, but see a lot of contracts as a literary agent. This email, which is not a contract, which we don’t get to see in context, or without emotional interpretive commentary, seems to be saying only that: Apple is giving the blogger access to millions of views (yay) that this will not be denying the blogger of income from ads (yay) that Apple does not, by so doing, take on any responsibility for the content or presentation of the blogger’s copyright property (yay because otherwise Apple would have to own a piece) and that Apple will make ad money of its own for views on News (more than fair for this free amazingly flattering upgrade to the blog). I don’t see a problem. It is a notice, not a contract. Who in their right mind would bitch about this? OK, OK the same people who objected to getting a free amazing album in their iTunes account. But that is a completely different issue.
I don’t know if that’s true. You see it all the time with class action lawsuits. You’re notified via email (that you may not even receive) that if you do not opt out of the class you will automatically be included. Silence in that case makes you an active participant in a class action lawsuit.
Everyone watched the season 2 series finale of Silicon Valley, right? We know how this will end up 😉
so the complaint is receiving a notice that someone plans to use his public newsfeed, and is giving him the option to say “Please don’t”…? not getting it.
also, some of the commenters feel this is a contract. it is not. it’s a notice. It’s an email giving you the option to respond to them about your public feed.
does it state that this is a contract?
yeah really not seeing the issue. just more hand-waiving on the part of the blogger here.
No, if he doesn’t actually agree to them affirmatively, there is no contract, and they have no legal leverage over him.
You can’t impose a contract unilaterally via sending an email. No judge in America will uphold a claim that you can.
(It’s spectacularly un-Apple to send such an email with an opt-out, I agree.
The correct, sensible, Apple way to do this is to invite the curated chosen with an opt-in, even if you don’t need any permission to package a public RSS feed.)
There’s no other way to force indemnification. “You agree you’ll do whatever” makes it a contract; all it takes is an agreement between parties to perform an action (or not to).
But there’s no “agreement” if you just send out an email and assume silence means yes.
Ain’t no judge going to buy “he never replied to this random unexpected, unsolicited email so our terms are binding”.
(Re. Mr. Beatty’s point, a class action suit is different, in that you are a “part of it” merely by being an affected person, whether you care or not.
The inclusion without consent is part of the very nature of Class Action suits under Rule 23; the point of them is that without the Class, the harm is so small that no individual member would bother suing – and to make sure that as many people as possible are granted relief by the suit, rather than going on to sue later, independently, and costing the defendant yet more money re-litigating.
A class action should only be granted by the Court if there’s nothing particularly relevant to the vast majority of the members of the Class that would make it sensible for them to litigate separately.
[E.g. when you get a payout from your telco for being overcharged, there’s no sensible point in having to opt-in vs. just getting a check once they look over the records and agree to a settlement. It’d waste everyone’s time and money to no benefit either to the harmed or the defendant.]
To agree to a contract, however, requires affirmative consent, since unlike a class action settlement, it is not redress for being wronged by another, but a novel agreement between you and another party.)
If memory serves this isn’t the first time Apple’s legal BS was brought to light. Remember the sapphire factory fiasco?
I’m not as sure as you are that this isn’t Tim Cook’s Apple.
I can’t speak for the original poster, but I take issue with bullets #2 and #3.
2 says “You confirm that you have all necessary rights…”, but hey don’t require a response unless it’s to opt out. That’s not confirmation, that’s assumption.
3 requires the feed owner to indemnify Apple no matter what. Again, no confirmation requested, they just assume the feed owner will cover their ass.
No other feed readers do this, AFAIK.