Guys, this is a long post, and I'm seriously channeling my inner law student. If you don't care about the Web Comics app debacle or intellectual property law, just skip it. If you care to listen to me wax on about copyright and RSS feeds, hit the jump. [More]
Okay, so people are probably sick of this by now. The Web Comics app has been taken down, and everyone -- readers, creators, developers -- can now go back to their lives. So why do I want to keep talking about what happened here?
For one thing, I posted about the Web Comics app earlier, but was mainly concerned with the technical aspects of the application. I deemed it a crummy app, so I tossed out a couple of snarky comments and made some glancing mention of the legal questions. But since the intellectual property issues seem to be all anyone cares about, I wanted to be more specific on that front.
Second, I am incredibly disappointed by the discourse in the webcomics community about the app. The tone of that discourse (which has taken place largely over Twitter) has been unnecessarily bullying, and the ignorance about intellectual property law has been shocking.
So, first a little background. I understand that this is old hat for a lot of people, but it's clear from watching this unfold across Twitter that a lot of folks don't understand the basics of copyright. Most webcomic creators allow you to view their comics for free. Copyright nerds tend to refer to this as "free as in beer," because you enjoy it in much the same way you enjoy free beer: without paying for it. However, this does not mean that these comics exist in the public domain; the creators still own the comics themselves and, unless they say otherwise, have the sole right to republish them.
If a comic is copyrighted with all rights reserved, then I can't republish it. I can't syndicate, say, Dresden Codak on this site. If a comic is licensed under a Creative Commons license, then I may be able to republish it, but I have to do so according to the terms of the license. For example, I could syndicate xkcd (much like xkcd sucks does), but I would have to give proper attribution and link back to the site, and I couldn't charge people a fee to look at it.
Now there is a thing called fair use, and it trips a lot of people up. I engage in fair use all the time -- it's the reason I have so many pretty pictures on this blog. Fair use means that you can sample a work in order to comment on it. Since I talk about comics, I'll often post panels from the comics so you can see what I'm talking about. If I'm offended or amused by a joke, I can republish the joke and explain why I was offended or amused. I can tease a comic with a panel or even an entire page. Parody is a kind of fair use (but don't get me started on that -- everyone gets that one wrong). If you're curious, there's more detailed info about fair use here.
There are really only two questions regarding the Web Comics app. The main one, the one most people seem to care about, is whether Zak was illegally republishing webcomics. The second one, which only a handful of people have mentioned, is whether he was illegally using webcomickers' trademarks to market his application. Because most of the comics we're talking about are not licensed under Creative Commons, it's irrelevant whether Zak was selling his app or giving it away; if he had the right to give it away, he also had the right to sell it.
Many comics (and blogs) use RSS feeds so that readers can keep track of multiple comics (and/or blogs) in an RSS aggregator. Chances are, you're reading this post in an RSS reader right now (assuming you haven't already clicked the "Next" button by now). RSS feeds are voluntary; not every webcomicker uses one (like a certain famous creator), but most of the big guys and gals do. Some feeds are text-only and serve mostly as a notice that a new comic is up, but some feeds actually send you each page of the comic as it is published. If you decide to have an RSS feed, then you are giving aggregators permission to pull from your feed and display it in an RSS reader, but aggregators must display the feed you provide; if you provide a text-only feed, for example, the aggregator can't display images from your comic. If your feed contains both text and images, the aggregator must show both as well.
There are a lot of RSS aggregators out there. Some are web-based (like Google Reader), some are desktop apps (like NetNewsWire), and some are mobile app (like MobileRSS). Many aggregators are free (as in beer), but many others, especially the mobile apps, charge a fee. Mind you, it's not that they're charging you a fee to read your subscriptions, they're asking for compensation for their software.
It's clear that a lot of people have commented on the Web Comics app without actually using it. I get that people didn't want to support an app that they were against, but some of the accusations lobbed against Zak were patently untrue. Some claimed that Zak was "stripping" RSS feeds for the comics -- meaning that he was grabbing the images out of the feed. That would have been illegal republishing, no question. It would be akin to selling a CD filled with pages of the comics. But Zak's application didn't do that (trust me, it would have been a lot easier to use if he had); it merely displayed the RSS feeds of the comics. If a comic's feed was text-only, then Web Comics showed only the text; if it was a mix of text and images, then it displayed both the text and the images.
Here are the only differences I observed between the Web Comics application and other mobile RSS aggregators I've used:
- The Web Comics app comes preloaded with subscriptions to over 100 comics feeds. This isn't actually unique, as I've seen some aggregators come preloaded with tech news sites.
- You can't add any feeds. The only feeds you can view are those that Zak includes.
- There is no in-application browser. This means that you can't view the actual sites (along with their ads and links to the creators' stores) in the application itself. You can open up the links in Safari, however. Again, I've seen desktop apps that don't have an in-application browser, but mobile apps usually do.
It's the preloaded subscriptions that have people up in arms. You might be able to argue that if the entire interface consisted of just the feeds. Again, it would have made the application easier to use, but that's not how it works at all. You actually have to click on individual links to each feed to view the feeds. It's actually less convenient and less like republishing than other aggregators I've seen. Creators may not like it, but providing a convenient list of links to your RSS feeds doesn't constitute republishing of content.
The second question, whether Zak committed a trademark violation, is a little simpler. The titles of webcomics are trademarks, regardless of whether they are registered; they are the names the creators use to conduct business. The question is whether the names, as Zak displayed them in the description, would confuse readers as to the relationship between the webcomics and the application. And yes, without additional information, it is possible that a potential app buyer might believe that these webcomics endorsed or participated in the creation of the app. Again, this is a quick fix. If Zak re-releases the app, he should include a line stating that these trademarks are the property of their respective owners, and that the creators were not involved in the creation of the application. However, he is allowed to make truthful claims about his application that involve other people's trademarks (see Playboy v. Welles).
A lot of webcomics creators, a lot of people I really respect and agree with on many things, have been dead wrong on this issue -- and some of them have behaved very badly. Now, these creators have spent a lot of time fighting the good IP fight. They've had to defend their work against IP thieves and explain to people that yes, webcomickers deserve their copyrights just as much as print cartoonists, musicians, and novelists do. And they've had an especially bad history with mobile applications. Several mobile applications have cropped up that have illegally republished webcomics, and it's exhausting for the creators to constantly combat them.
Dale Zak unknowingly walked into this minefield. If he was aware of how potentially inflammatory his application was, he might have done a better job of explaining that it was simply an RSS aggregator, not a stripper or other brand of republisher. I'm willing to assume that many of the creators who started howling for Zak's blood completely misunderstood what Zak's application actually did. I imagine that this was largely a misunderstanding bred from a bad history with mobile applications and the reaction was -- by and large -- knee-jerk.
But you know who else has fought legitimate IP battles? Disney. Viacom. Sony. It's still shitty when they intimidate people with bogus takedown notices bolstered by their expensive legal teams. And some webcomickers fought a not-entirely-legitimate IP claim with another kind of intimidation: Twitter. They didn't reach out to Zak privately or serve him with an erroneous (if well-meaning) takedown notice. Instead, they screeched across Twitter that Zak was an IP thief. Now, if I've got 10,000 Twitter followers who love me and hang on my every word, and I tweet that some jackoff is stealing my content, I have a pretty good idea as to what's going to happen next. Next come the torches and the pitchforks.
Seriously, do a Twitter search for @dalezak and ask how much would you hate to be that guy. Cyberbullying doesn't just happen to kids; it also happens to app developers who piss off the wrong people. Yes, there's a reason that the webcomics community tends to fight these battles in public. It has proven an effective way of combating some genuine IP thieves. But if you're going to deliberately incite that level of bile, you owe it to your fellow human being to do a little due diligence first. Also, when the guy takes down his application, it's a nice courtesy to call off the dogs (which some, but not all, folks did).
Like I said, I have a lot of respect for these people and what they do. This was just one bad day, but it was a genuinely crappy day.
But even putting aside misunderstandings about the application itself, there was a lot of bad information flying around Twitter about IP and web commerce in general. Because I can't leave well enough alone, I want to address a few of them.
wants Apple to ban RSS readers (I think this is the first argument I've heard in favor of Apple's walled garden), so maybe it's an extreme opinion. But we as a society require novelty to patent something -- not to sell it. A lot of people could have programmed the Web Comics app, but you know what? I couldn't have. And it might be worth $1.99 to me to purchase someone else's time and expertise, even if he didn't create anything particularly innovative.
I'm hoping this is my imagination, but when reading the Twitter commentary, I've sensed a bit of luddism regarding this application. There's a lot of "I gave out access to my RSS feed, but I didn't expect someone to use it that way" going around. I understand being suspicious about the application, and I understand having hinky feelings about Zak charging for it, but is it really so awful to make webcomic feeds easier to read and to make webcomic websites accessible through more applications? I'm surprised that I noticed only a couple of these:
I do think Zak should have talked to webcomic creators, but not so much to ask permission. There were a lot of technical issues with the application having nothing to do with the legal questions. Over on Zak's blog, he's getting some nice advice from folks like Christopher Baldwin and Bill Barnes on how to make his application better and more creator-friendly. And I do still believe that an awesome webcomics app would involve breaking up the comics into individual panels -- and that would require the creators' permission.
Phew. Okay, I'm officially sick of the serious stuff. The next post will contain much more fun.