Catch-22 Terms of Service

Apple pulled a newsreader called Pulse from their App Store yesterday after the New York Times sent a letter saying that the application violated their terms of service.

The issue seems to revolve around the fact that Pulse is a paid-for app, and having the New York Times RSS feed pre-installed amounted to charging people for the feed.  As far as that goes, I think the Times is only hurting themselves… the purpose of the feed is to get more people to visit their site and read their content (as well as view their ads).

I was curious, however, and looked up the Terms of Service.  Here is the relevant section:

2.2 The Service and its Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.3 of these Terms of Service), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.

2.3 You may download or copy the Content and other downloadable items displayed on the Service for personal use only, provided that you maintain all copyright and other notices contained therein….

Having read this, I now suggest that you take a look at their Home Page RSS feed.  I have viewed this link using Firefox 3.6, IE 8, Chrome 5, and Safari 5.  No sign of the copyright information.  It is there, if you download the page and view it with a text editor, but it doesn’t appear to be visible using the most common web browsers, and most feed readers won’t display the copyright information, as it is encased in metadata tags.

This isn’t unusual; it isn’t even uncommon.  Terms of Service tend to be all-encompassing in their language, and if you were to take the above literally, you would be able to “download or copy the Content”, but not “display” the content.  Does “display” also include having the content appear on a computer screen, or does it only come into play when someone puts an article on their refrigerator or bulletin board?

I am a proponent of respecting copyright and licensing, but I am an even bigger proponent of respecting Fair Use and reasonable expectations.  If I print out an article from the Times because I think it will benefit someone else, why should the Times consider this an infringement?  If they don’t want us reading, discussing and sharing their content, they should reconsider their business model.  I suspect that timely, interesting articles may not be the best fit for their website and newsfeeds.

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