Wednesday, May 12, 2010

The Web Comics App Aftermath

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.
The only question we're asking is whether what the Web Comics app constitutes republishing any more than what any other RSS aggregator does (Edit: i.e., whether he's republishing beyond the license granted by providing RSS feeds). None of the bullet points above is particularly damning, although given what a pain it is to open links in a new application (at least on the iPod and iPhone), it would be safer if Zak included some kind of in-application browser so that his aggregator behaved more like other ("traditional") aggregators. If it's too much of a pain to open links, creators could argue that Zak is effectively walling off their feeds -- which could maybe be considered a kind of republishing since one purpose of feeds is to create easy access back to the originating sites. But that's a tweak, and judging from the commentary I've seen, I doubt anyone but me noticed.

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.

"I didn't give you permission to include my comic in your application."

A lot of people said this, and it would be unfair to single any one person out. Assuming Zak's application didn't involve republishing, then yes, yes you did. You gave him permission when you made your RSS feed available to the masses. You don't have to have an RSS feed. Danielle Corsetto gets along fine without one, but the truth is, I'd drop a lot of my current reading list if I had to visit every comic's site every day. And there's nothing wrong with having a text-only feed -- something that would more or less thwart Zak's particular application.

"My problem is that he's selling the application."

I get that. At first glance, it does look a lot like he's selling access to other people's content, especially from his description. But he's not. He's selling a platform that makes it easier for you to view that content on mobile devices. He's selling software. Nowadays, most browsers are free, but it's completely legal, for example, for software companies to sell browsers, even though you'll use it almost exclusively to view content made by someone other than the software company. Certain limited browsers, like kid-friendly browsers, still charge money for directing your children toward Nickelodeon and Disney. The Web Comics app is essentially a very limited browser, and as with other RSS readers and browsers in the iTunes store, he can charge for it.




Okay, this is a little nitpicky, because the person obviously mispoke (mistweeted?), but "fair use" has a very specific meaning. Zak isn't sampling and commenting on these comics; fair use isn't even in the neighborhood of this conversation.

This comes from a person who 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.

35 comments:

Blair said...

Thank you for this. Thank you, thank you, thank you. I'm working up a piece of my own on the whole debacle, and all in all, I'm pretty unimpressed. Not at the app itself, I didn't get a chance to download it. But rather at the reaction from the webcomic community. I understand that RAAAAR I'M GOING TO BITE YOUR HEAD OFF is the general artist knee-jerk response to someone "stealing" your content to make a profit. It's clear that wasn't what Dale intended, and he did his best to rectify the situation.

Honestly, I'm still searching for that "unicorn" of an app, something that can do for webcomics what Comics and Comixology have done for paper-and-ink comics. I think Web Comics has potential, even more so if there are content creators who are willing to work with Dale to make something truly special happen. There are 5 different apps in the app store for XKCD. Now I realize that Randall Munroe's webcomic is ridiculously popular, but it's clear that these apps are made by people who love the comic, and wanted a way to carry it with them. None of them work superbly either. If Randall Munroe released an official app for a buck or two, that just worked I'd gladly lay down the cash for a better UX

But nothing's going to get done unless people really step up and help, and try not to bite people's heads off when really big misunderstandings like this happen. Moreover, when they do, publicly modifying/retracting a statement (or at least referring to the other side of the argument) would be really nice.

Honestly, there are some folks in the webcomic sphere that I am not going to bother with at this point. Not because they went out to defend their IP, however misguided they were, and not because they got angry. I'm not going to bother with them because they used their followers on Twitter as their own personal army, and when Dale finally fixed the problem their only response was silence or some variation of "serves him right." As a certain pen-and-paper character once mentioned: "With great power, comes great responsibility."

On the other hand, there are some people who have behaved really well in the face of all this RAAGE. They're the real heroes here. They've behaved with poise and respect, trying at least as much as they could, to turn the tide of the INTERNET HATE MOB they unleashed.

Until today, I hadn't even heard of some of the comics that these people represented. I don't know if they'd even fit my taste. But I'm interested. A large-scale webcomic portal on the iPhone would be great, because I could discover something new that I liked at my fingertips. I hope maybe, maybe, somebody will step up and do something cool. I'll be waiting.

Lauren Davis said...

@Blair: I think it's an important thing to highlight, but I wouldn't be too too rough on the webcomickers. I think what we're seeing is that something that has, in the past, been a useful tool is turning into a bit of a bad habit. And webcomickers on Twitter are hardly the only ones guilty of this -- I've seen a lot of disproportionate (or misdirected) response running through deviantART and reddit lately, and I'm sure other communities do it too. Sometimes we all (myself included) need to stop ourselves from immediately reaching for the keyboard and just chill out for a second.

And I agree, we should hold up the folks who were level-headed even while commenting on all this chaos. I probably should have done a better job on that front, but honestly, I was too exhausted after all that verbal vomiting.

darrylayo said...

I don't mean to question your technical expertise. I do question your interpretation of the outraged cartoonists'...well, outrage.

Some of these people, as you have noted, have seen profiteers come in waves, trying to earn a dime on their hard work. For some of these people, their website is their primary livelihood. I understand the anger and I understand not calling a "cease-fire" even after the application was removed.

Artists are unfairly forced into the position of taking a growling, militant stance on their property because even if one guy didn't operate with malicious intent, it's important to demonstrate to other, more malevelent people out there where the lines are drawn.

I'm sure he's a nice guy, but he walked into it.

Christopher Baldwin said...

Awesome post, Lauren. I'm always fascinated by law, and it's nice to see this all laid out.

I admit I as well spoke out against the app yesterday, even if it was mild and in response to another. It was one of the things about the issue: without paying $1.99, the only info anyone had was the sales page and what was being said.

But I saw that he was using other's brand names to advertise, and so I agreed it should at least not do that.

Anyhow. Yeah. Thanks for the thoughtful post.

Lauren Davis said...

@darrylayo: I don't think we're disagreeing on the cartoonists' outrage. I completely understand how otherwise lovely, reasonable people could have behaved this way.

But bullying legitimate projects into oblivion is a problem, and not just for people like Dale Zak. For example, Jonathan Rosenberg (who mistook the application for a DMCA violation, but seemed pretty reasonable about it) has complained that he's not getting the traffic he needs on Goats. Well, an application like Zak's would make it easier for readers to keep track of Goats on their mobile devices, and give them more opportunities to visit the website. RSS readers are the narrative cartoonist's friend.

Legitimate innovations can help cartoonists, but if these innovations are met with hostility, it disincentivizes innovation. I think it's better for everybody -- developers, readers, content creators -- if folks take care to battle only legitimate claims, and make sure they're not crying wolf.

Lauren Davis said...

@Christopher Baldwin: Thank you so much for the compliment! I agree, the $1.99 barrier did a lot to contribute to this misunderstanding. It's a good object lesson on the importance of accurate and specific release notes, being able to get free versions to the right people -- and part of why reaching out to creators would have been a smart idea.

Tyson said...

To be fair, he did not reveal or otherwise give a hint that this was a simple RSS reader until after the complaints started. There have been other attempted webcomic reader apps like this in the past where it took the content directly, and everyone was assuming this was no different.

If it was known up front that it was using the author's full rss feeds, the reaction might have been tempered, though complaints would probably still persist.

Lauren Davis said...

@Tyson: Agreed. Zak definitely made some missteps there. Developers should be clear about what exactly they're providing, especially with a payment barrier.

Dan Simon said...

To be perfectly honest, I was actually pretty stoked that my comic was included in the app.

I intend to post something on our site about it, and I intend to mention your post as well. A very insightful look at it.

Dale said...
This comment has been removed by the author.
Dale said...

Lauren, I really appreciate your support and insight on this topic!

Yesterday was a rough day, and honestly I was quite shocked when the angry mob formed. As I stated in my blog post, I created this app for other comic fans so they can enjoy and share their favorite web comics on the go. As you pointed out, I wasn't just charging for already free content but rather offering a lot of additional functionality that made it worth the price tag.

I believe you also addressed an important issue, that Twitter can be a great communication tool, but also a vehicle for mass miscommunication.

People, began reacting out of anger based on bad past experiences, rather than thinking rationally for themselves. Sadly, some of histories worst tragedies were caused by blindly following others.

Since this incident started, I've been contacted by a number of comic artists that fully support the application, and would love to see their comic in it.

I read your info on your pulling this app from the "store". I, llke most serious web cartoonist, welcome this type of app. We run ads on our site and the traffic would only improve. If you recieved negative comments I would only assume it stems from "artist" that are not aware of the outside world. If you ever place the app back up for all to have again, please feel free to use [my comic].

These artists obviously see the benefit in having their comic in the hands of new readers, able to leverage their fans social network and the ability to generate revenue through embedded ads in their feed.

Thanks again Lauren for the great post and conversation, and as Graham Bell once said, "when one door closes, another opens; but we often look so long and so regretfully upon the closed door that we do not see the one which has opened for us.". Hopefully once all the dust settles, something good will come of this...

Bill Shirley said...

I knew I started reading you (eep, in an RSS aggregator - release the hounds) for reason.

Well said.

Prestwick said...

I'm worried about the kind of reaction that people get. Does Dale actually really need to submit to the public the exact ins and outs of his app? Not really. If it is illegal (which it isn't) then someone can quite easily cry foul and get it removed. No problems.

Thus I simply don't really follow the whole "Well he didn't exactly say what the app was until people started complaining" argument. Its a simple RSS feed reader. Hardly rocket science.

I'd be absolutely chuffed if I was added on his list regardless of whether his app was free or if I had to pay for it in angel tears or whatever.

Mike said...

This is a good post. But I still think the point is missed entirely. Had Zac gone to each artist and said I have this app, this is what the app does (pulls only the RSS feeds that are included and none can be added by the user) and this is what I want to charge for my app, would you like to be included and does your RSS feed include the image? All of the questions could have been dealt with up front, cleanly and without animosity. The Artists might have even entered into an agreement for their work to have it's own app....who knows.

That isn't what happened. Zack made the app and didn't ask any of the Artists. Period. Doesn't matter if it was free or not, he didn't ask the permission of the artists. That "is" the sole issue.

Web artists are working too hard to be run over by anyone anymore...it maybe a labor of love to get their work up, but they expect to reap the rewards for it, not someone who had nothing to do with the art or it's creation.

Prestwick said...

This is the problem, Mike. He isn't selling content, he is selling an rss reader geared towards webcomics.

I just checked Android store and there are several RSS readers on sale between $0.99 and $2 but many are free so if someone wants to produce a free version then that's what happens.

This is the real world and he is perfectly entitled to do what he likes.

Dale said...

Web Comics has been re-submitted to the App Store.

Since removing the original app from sale, I've been busy adding improvements including the ability to add your own comic feeds. You can also select from a list of featured comics or discover comics other fans have added. The app also displays the number of times a comic has been viewed, a great way to see it's popularity.

The app still has many of the original features including starring and filtering on unread episodes as well as sharing via Twitter, Facebook and email. The application is also designed especially for the iPad and iPhone which makes it perfect for reading your favorite comics on the go.

For artists, the app is a great way to get your comic in the hands of new readers. And since the app displays the full RSS feed content, comics with embedded advertisements can benefit from click-throughs thus generating revenue for the artist.

Here's a blog post with more information:

http://www.dalezak.ca/2010/06/web-comics-republished.html

Dale said...

Web Comics 1.1 is now available for iPhone and iPad on the App Store:

*Subscribe from a list of featured comics
*Add your own comic rss feed
*Discover comics other fans have added
*View number of times other fans are read a comic
*Alert tips give helpful information
*Improved loading of comic feeds

http://itunes.apple.com/ca/app/web-comics/id368792200

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