Apple blasted over ‘opt-out’ News app blogger contract

“Apple is facing criticism over an email sent out to bloggers that assumes acceptance of terms and conditions,” Sean Keach reports for TrustedReviews.

“The company has informed a number of bloggers that it intends to include their sites’ content in its recently announced News app, with the email in question reeling off a number of terms that will apply to those involved,” Keach reports. “The controversy has been sparked because Apple applies the terms and conditions as part of an opt-out process. This means that unless you explicitly say you don’t want to be part of the News app, it will be assumed that you accept all of the terms outlined in the email.”

“Unfortunately, this means that if a blogger misses the email, they could unwittingly be accepted into a programme that they otherwise may have declined,” Keach reports. “While this might sound sinister, appropriating RSS Feeds for news aggregators is standard industry practice. It’s also a common-sense move; attempting to manually sign up innumerable bloggers to the News app would be a long and painstaking process.

Read more in the full article here.

“The BBC has spoken to three online publishers about the move,” Kevin Rawlinson reports for The Beeb. “One of them, Mike Ash said he thought it was ‘wrong of Apple’ to presume that he would indemnify them. He said the email was ‘presumptuous.’ And, in a blogpost entitled I Do Not Agree To Your Terms, he took issue with the requirement to opt out.”

Let me get this straight, Apple: you send me an email 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? You’re going to consider me bound to terms you just declared to me in an email as long as I don’t respond? That’s completely crazy. You don’t even know if I received the email! — Mike Ash

Read more in the full article here.

MacDailyNews Take: As Americans, we hit our limit on self-righteous indignation approximately two decades ago, at least, thanks.

Here’s a hint for bloggers: If you don’t want anyone to use your RSS feeds, don’t publish RSS feeds.

36 Comments

  1. The issue is that Apple is claiming that their email is a contract, which is ludicrous. Apple is imposing their terms on bloggers without their explicit agreement. Apple says that they indemnify any claims against Apple by anyone who takes legal issue with the content. So if someone writes a blog that says something unfavorable about another person, and if Apple (big pockets full of money) republishes it and the offended person decides to sue… Apple says that by Apple sending this email that the blogger indemnifies Apple against any claims against the content. Apple attracts lawsuits because of its wealth and the bloggers will likely have a larger legal liability due to Apple’s involvement. Apple is big enough that they should pay their own lawsuits.

    1. As a publisher of content, I know I’m responsible for that content. If I don’t want legal action against me, I won’t publish anything that is libelous or illegal. By making my RSS feed public, I’m allowing anyone and anything to grab it. Why should someone or something else be responsible for distributing what I created?

      Otherwise, systems like this simply won’t work at all. Here’s a great get-rich-quick scheme if the original publisher of the RSS feed isn’t responsible for what they publish:

      I create a public feed. Google, Microsoft, Apple, etc… pick it up. Then I publish something intentionally libelous against my partner. My partner then sues, not me, but everyone who had an automated feed aggregator for the deep pockets they have.

      Even if I don’t do this as a scam, if the people creating content aren’t responsible for the content then all kinds of issues result due to them being irresponsible.

      As far as Apple’s “contract”, we’ll see how well it’s upheld in court, although ultimately, I see the courts siding with Apple, not because the letter represents a contract, but simply expresses how things work.

          1. As I mentioned elsewhere, it seems like you don’t know what the very important word “indemnify” means.
            Of course the blogger will be liable for whatever a court/jury says the blogger is liable for. The astounding thing is that Apple’s email purports to say the blogger agrees (by receiving an email!) to pay for whatever a court/jury says APPLE is liable for. That is not how things work. Your misunderstanding of the question seems to be the problem here.

            1. As I mentioned elsewhere, you obviously didn’t read the email and are making statements based on what you think it says.

              Your misunderstanding of the email, and my comments seem to be the problem here.

              “The astounding thing is that Apple’s email purports to say the blogger agrees (by receiving an email!) to pay for whatever a court/jury says APPLE is liable for.”

              That’s neither what Apple said, nor does it have anything to do with what I originally commented on. That’s why you’re wrong when you wrote “That’s not how things work”.

    2. You know everyone should go to law school. Then companies like Apple wouldn’t scare anyone.

      Let me be clear. APPLE, YOUR EMAIL IS NOT A CONTRACT AND IS NOT ENFORCEABLE.

      There is a criteria for a contract. One point is that it requires both parties to agree to it. If there is no evidence that a party to a contract agreed to it then there is no contract.

      Also, it would never stand up in court if someone didn’t respond to an Email. Apple can claim whatever terms it wants but it’s meaningless unless both parties consent. A lack of a response Email is not enough to show consent. To be sure of how legally bankrupt and absurd this is, anyone can then send an Email like that to anyone and bind them.

      This will never hold up in court.

      MDN just drop the koolaid already please just stop. The News App is far from a success and the open web is where news needs to live and where it’s successful.

        1. You’re both missing the point that the email, while not a contract, doesn’t need to be a contract.

          Apple is sending an email expressing that they aren’t going to be responsible for libelous content inserted into public feeds that they syndicate. That’s not a contract, and Apple isn’t saying that it is.

          And it doesn’t need to be a contract. Apple with Apple News is no more responsible for automated syndication of public feeds than would be anyone else in the chain.

          If someone published something libelous against you, would you sue the original publisher who created the content with malicious intent, or would you think you could be successful by suing Comcast, WordPress, Feedly, Digg, Google, Facebook, Twitter, and every other ISP, feed reader, service and device manufacturer that each and every person used to consume the content through the publicly available syndication feed?

          Is the email meaningless? As a contract or from pretty much any legal perspective yes, but as publicly informing people what they intend to do and what publishers should expect, no, not at all.

          1. You’re missing the point in that you don’t seem to know what the word “indemnify” means. Apple is asserting that the blogger, by receiving the email, is agreeing to PROTECT Apple from lawsuits by someone who sues Apple. In other words, if Joe Smith is pissed off about something a blogger wrote and Apple re-published, Joe Smith might sue both the blogger AND Apple. Apple is trying to say that, whatever the court/jury decides, the blogger is AGREEING to pay any damages the court/jury says that Apple is liable for, in addition to any damages the court/jury says the blogger must pay Joe. That’s what “indemnify” means. Look it up if you choose not to believe me.
            Disclaimer: I am a lawyer, but not yours, nor anyone else involved.

            1. I understand what indemnify means. However, you didn’t read the email, did you?

              If you had, you would see that the wording Apple used is nothing like the wording you’ve used.

              The exact wording is, “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.”

              Where exactly in that is it saying that the publisher agrees in advance to indemnify Apple against any legal claim?

              Heck, even if this were a contract, which it isn’t, that wording wouldn’t require the publisher to indemnify Apple.

              If I publish something libelous and someone sends Apple a legal claim. Apple will notify me so that I can resolve the issue, including indemnifying Apple. It says nothing about me being required to resolve the issue or being required to indemnify Apple. If I choose not to resolve the issue or not to indemnify Apple, this letter (not a contract) specifies no resulting action.

    1. No, MDN is wrong on this. Apple tried to impose a legal contract that indemnifies them from any lawsuits their republishing of third party content might cause. You can’t do that unilaterally and by email. It would never hold up in court. Apple should pay its own legal expenses.

      1. Again, if a blogger doesn’t want anyone to use their RSS feeds then don’t publish them. The optimal word there is “their” and that is not referring to Apple.

        I’m not sure but I think Apple doesn’t even have to send out the email because publishing an RSS leaves the blogger open to possible lawsuits. Apple is just basically warning them not to try to use Apple as your scape goat.

        I’m confused because normally most websites and want someone to guide traffic to their site. Dooh!

        1. That is most decidedly NOT “how things work,” at least not in the U.S.
          Apple’s “contract” is not one. Sending a contract to someone and saying they’ve accepted its terms if they make no response and take no other action is ridiculous and would be laughed out of court, at least under current law.

          Publishing an RSS feed means that, yes, Apple and anyone else can read it, and probably even show it to other people. It does NOT mean that you can be assumed to have agreed to contracts that impose other liabilities on you, like indemnifying those who use your feed. That is ludicrous. It’s a little tiring seeing people spout off on this when they have no idea what they’re talking about, which is made clear by stupid comments like “if you don’t want to be deemed to have agreed to all kinds of random bullshit, don’t publish an RSS feed.” Publishing an RSS feed where you say something libelous might get YOU sued, but it doesn’t mean you can be forced to indemnify a re-publisher if THEY get sued.

          Disclaimer: I am a lawyer, but not yours.

  2. This is ridiculous. The feeds are made public by default and anyone can reference them.
    Apple are giving the sources the chance to opt out which they did not need to do.

    1. That isn’t what this is about – please actually read the article. It is NOT about using the RSS feed, it is about saying the blogger has agreed to a bunch of other things just because Apple is using their RSS feed and pushed an email at them. Completely ludicrous.

  3. But this clause is a problem: “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.”

    1. Yeah, Apple is letting elm know they’re going to repost their shit but they’re not responsible for any whackjob nonsense that blogger may publish. Apple is only passing on that blogger’s stuff. They should not be accountable. Can you hold Google responsible if you see something on a website in a chrome browser that you dislike? Apple isnt even required to get consent from these bloggers. This is public info they’re passing on.

    2. That’s not how I read it…

      “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.”

      Indemnity is not implied now… But If Apple were included in a claim, they will request indemnity. Indemnity is a part of the “resolution.”

      Which means, there are no terms that the blogger is being subjected to. Apple is promising they will notify them.

      These guys are so obtuse. They can write crap, but can’t read. I guess that goes hand in hand.

    3. I think I see why so many people here are confused: they don’t really know what the word “indemnify” means.
      The purported “contract” that Apple is sending out basically says this: “If we decide to put your RSS content in our app and someone sues us for millions/billions of dollars, you agree to pay any penalty the court says Apple is liable for, not just what the court says you, the blogger, are liable for. Oh, and if you don’t respond to this nonsense email, we can pretend that you sad ‘yes.’ ”
      It is laughable, but typical, of the kind of nonsense attorneys write so they can say “well, we tried our best!” Another example is the bogus disclaimer at the bottom of many attorneys’ email signatures where they pretend that their warning to any random person they send an email to can somehow impose all kinds of required behavior on the recipient, like deleting it if they follow-up and say to. Those warnings are basically this: “If I fuck up and mail this to a reporter, I want to be able to tell the clients who I just screwed that I made it so the reporter would have to delete the email.” The warning does no such thing – that reporter can probably do whatever they want with the content of that email.

      Disclaimer: I’m an attorney, but not yours, nor anyone else involved in any of this. Well, not really anyone’s at all, since I am not practicing, but writing code instead.

  4. MDN, your first statement is wrong, “As Americans, we hit our limit on self-righteous indignation approximately two “and one-quarter centuries” ago, at least, thanks.”

    However, I somehow doubt that a unsigned contract can withstand judicial scrutiny.

  5. I don’t know how this is normally handled by news aggregators. Do they ever ask up front to republish, and wait for a complaint? I have no intention to read the actual contractual language, but it sounds like Apple was making an attempt to be proactive, but made the mistake of allowing the attorneys handle it.

    1. My company publishes numerous RSS feeds for corporate clients. We attempt to syndicate as broadly as possible. About half or so are opt-in, which is a hassle. Virtually nobody “asks for permission”. It’s pretty much either you have to manually register your feed with the service, or they automatically just add it without asking. I prefer the latter.

      It’s trivially easy to block any aggregator, although there’s rarely any need to.

      The lines get a little bit blurry though on opt-in versus opt-out. For example, Apple’s iTunes Podcasts. You have to sign up and submit your podcast to be in the directory, but anyone can take your feed address and subscribe directly to it in iTunes. Many aggregators work this way. The same goes for feed readers.

      MDN’s take is spot on. If you don’t want people republishing your RSS feed, don’t make your RSS feed public. If you don’t want to be responsible for legal action, don’t publish anything libelous or illegal.

      The people complaining about this are just pissy bloggers who don’t realize Apple just expressed in writing what everyone has been doing with RSS for years now.

      1. I suspected something like this. Apple, being Apple, has to cover their ass more than the average Joe because they know some opportunist will begin a class action suit to dig into those deep pockets.

  6. Apple have said they will curate their content. That implies editorial judgement.
    If Apple used an algorithm that copied and redistributed content they could claim ignorance of any falsehood. I’m not sure that adding an editorial aspect might not leave them open to a judgement call.

  7. Dear MDN;
    You are notified that you are liable for all my damages and attorney’s fees if I am injured because something you published , even if written by a third party, turns out to be incorrect. This arises because of the implied contract that you made with me that you would only publish accurate information. I am relying on this contract when I read your pages. If you continue to publish on the web it is assumed you accept my terms.

  8. Total rubbish on Apple’s part, if this is true.

    This means that unless you explicitly say you don’t want to be part of the News app, it will be assumed that you accept all of the terms outlined in the email.

    NO legal foundation. Nothing. Thrown out of court by default. Apple has NO grounds at all.

    Meanwhile: If Apple grabs a bunch of RSS links and publishes them, ENTIRELY fair.

    Just cut the inferred fake contract terms and conditions crap. NO SUCH THING. Thank you Mike Ash for helping to point this out. There IS no contract. There ARE no terms and conditions. Deal with it Apple. You take what you get when you link to an RSS feed. End of discussion.

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