In almost ten years of having his own website, Dennis Kennedy says he has seen his content show up in many unexpected places. However, even he was surprised when he found a twin of his blog on the website of, a very popular blog tools and RSS newsreader service.
“I had done a search on Google and found that one of my blog posts was one of the top results,” he says. “Then I noticed that the address for my post was not on my website, but instead on the site.”
When he went to, he says, “I found a doppelganger of my blog. I saw my full posts mapped onto something that someone might think was my blog, but it definitely was not my blog. Worse yet, the URL in the address box in my browser showed a address, not a address. Anyone who came to this page would definitely think that it was my blog and probably conclude that I was part of the Bloglines team.”
When he did some more checking, Kennedy found another big surprise. The addresses for his posts sometimes were ranked higher than those on his own site. In one case, however, a visit to brought up a page that mapped his posts onto a version of Cindy Chick’s LawLibTech blog. “Hey, it’s an honor to be associated with Cindy’s great blog, but it’s extremely confusing and someone could easily believe that I was copying Cindy’s material on my own blog, or vice versa. Talk about the worst of all worlds.”
Even though Kennedy reports that his web pages have been “repurposed” by other sites more times than he ever expected over his years on the Internet, he says this time was especially unsettling. “I have to admit that my first reaction was to think that they had stolen my blog. I even went back to my own blog to check to make sure it was there.”
Kennedy, whose law practice includes intellectual property licensing matters, raises a number of questions about’s practices. “There’s no question that fair use is a complicated area in copyright law, but it’s difficult to find ways to fit this example into traditional notions of fair use. I’d be surprised if they hadn’t gotten a legal opinion on this approach, since it seems so central to their business model, but I’d like to see the reasoning in that opinion.”
His main question, however, relates to the commercial benefits seems to gain from his content. “With my content on their site, they are able to surround my content with their own ads and make it part of other revenue-producing activities. At the same time, they are not showing any ads or sponsor logos I have on my blog. Presumably, the twin of my blog diminishes the traffic to my blog. It’s all very analogous to the early controversies over the framing of web pages, even though the technologies are different.”
However, more than intellectual property law may be at play. “Everywhere we go on the Internet, we are clicking our agreement to all sort of contracts that we may not read carefully enough,” notes Kennedy. “I’d hate to think, however, that we are giving our permission for this type of use with a click of the mouse or simply by using the website.”
He sees no clear answer, for himself or other bloggers. “It’s difficult to sort these issues out. In a sense, by using an RSS feed I am exposing my content to the world and, as my friends will tell you, I probably won’t be satisfied until everyone in the world is reading my posts. In some ways, the whole scenario reminds me of a law school exam question. Fair use or not? What controls? Their clickwrap agreement, if any, the “terms of use” language on a blogger’s site or something like a Creative Commons license for the bloggers who use these licenses?”
Kennedy admits that he has expected to see some action or discussion from the Creative Commons group. “One of the Creative Commons licenses you see frequently specifies no commercial use. Wouldn’t this be commercial use? The silence from Professor Lessig and the Creative Commons group has been overwhelming. It raises serious questions about what the CC licenses really mean and how their terms will be enforced. I don’t use the CC licenses because I don’t think that they make sense for me, but many bloggers routinely apply one of these licenses.”
Do bloggers have any recourse? “That’s a great question,” says Kennedy. “Bloglines offers an RSS feed reader tool that many people I know really like. I’m one of the biggest advocates of the power of RSS feeds you’ll find. I hate the idea of seeing the development of RSS feeds slowed down to any degree whatsoever because of lawyers and legal issues. I really want to hear more from Bloglines about this issue before making any final judgments.”
Kennedy suspects that there may not be any simple practical solutions. “Of course, I’d love to see some of the venture capital money that Bloglines has gotten or will get make it back to me,” he chuckles. “Your first thought, of course, is that there should be some form of payment to the bloggers whose content is harvested and mapped onto the Bloglines site, but creating a mechanism would not be an easy job. In addition, you have the Google model, where, as I understand it, Google has actually copied my content into its databases. I haven’t gotten my check for my small contribution to Google’s successful IPO and I’m not holding my breath waiting for it to arrive,” he says, laughing.
“I always prefer practical technology solutions to legal solutions,” say Kennedy. “Maybe that’s why people also tell me that I’m not like most lawyers they meet. So, I’ve been thinking of practical alternatives.”
Has he found any good ones? “Well, Bloglines seems to be capturing and repurposing feeds rather than reproducing blog content, if I can make that fine a distinction. I look to the feeds for the solution. Although it puts a burden on bloggers, I’m giving serious thought to including a statement at the bottom of each of my feed items that gives the post’s real URL on my site and makes it clear that I’m not a participant in or an endorser of the Bloglines site. But, that only covers half the problem.”
Some may be surprised to find that in the free-ranging world of bloggers, there is one place most bloggers are afraid to venture. “The last taboo in blogging is definitely placing ads in feeds. The group of bloggers who most of us see as the inventors of blogging debate this issue endlessly and treat placing ads in RSS feeds as a defining moral issue. Those who have tried putting ads in feeds have really taken some heat.”
Kennedy laments the fact that the debate has gone on and on and seems no closer to resolution. “Between Thanksgiving and the end of 2004, I collected more than 150 blog posts on the topic of ads in feeds. It’s sad to see highly-regarded and popular bloggers resorting to pledge drives, begging and randomly-served ad schemes that probably only benefit blogs with huge numbers. It breaks my heart to see a blogger who provides great computer tips or other great information begging for donations when his or her aging computer dies, especially when companies would gladly pay for even a simple sponsor logo in that blog’s RSS feed.”
Today, Kennedy feels the debate over ads in feeds has reached the “how many angels can dance on the head of a pin” stage, with a focus on semantics and metaphysics. “I minored in philosophy in college, but the discussions in this debate can make my head spin. I hate to even comment on the current argument that it is OK to make money from blogs but not to make money with blogs. By the way, it is essential to italicize the “from” and “with” to get the real flavor of this discussion. As a practical matter, some of the explanations why one practice is a “from” and another is a “with,” make you long for the clarity of Bill Clinton and what the meaning of “is” is. I don’t want to be critical, but it’s possible for a disinterested observer to conclude that “from” is what the person making the argument does and “with” is what someone else does, at least in some of these discussions. The irony is that the whole debate has ended up putting most bloggers in the worst of all worlds – the world of randomly-served ads. How in the world that isn’t a “with” I’ll never understand. Sorry for all this inside baseball talk about blogging esoterica.”
Kennedy says that he and others are losing patience with the debate and the world of randomly-served ads that the endless debating has created. “I want to be a good citizen in the blogosphere. Lawyers already have a place in Internet history as the creators of spam. I’ve been reluctant to move to ads in feeds, despite the inquiries I have had, without a clear signal from the leading bloggers who dominate this issue.”
He reflects for a moment and then says, seriously, “The approach Bloglines has adopted, especially in my case, changes the whole nature of this debate about ads in feeds. In fact, I’d argue that it ends the debate. If my blog can be duplicated in another location without the ads on my blog or any of the other materials I might have on my blog about my products or services or other ways I might make money “from” my blog, then what are we left to talk about? The only effective choice I have to realize the value of my blog’s content and audience is to sell ads in my feed. Bloglines has brought the issue to a head. In fairness, Bloglines is not alone – you will find other examples.”
Kennedy plans to take steps soon, but he’s not looking to fill his feeds with intrusive ads. “I don’t even understand why bloggers would use randomly-served ads. It not only works against the sense of trust and authority that a top blogger can establish, but it also introduces the possibility that a randomly-served ad may make it look like you have a conflict of interest. I’ve always thought that the sponsorship approach is the way to go, with a small, tasteful logo and tagline, and possibly with a link that allowed the blogger to earn commissions on sales generated through the feed. That approach also has the benefit of disclosing a blogger’s financial relationships. It helps readers adjust for potential bias or conflicts, while offering good compensation to niche bloggers.”
Kennedy warms to the subject, “Sponsored ads in feeds are such a logical step that I’ve been surprised that there has been such a fight against them. Blogging is about freedom, but the one thing I’ve never felt free to do as a blogger is put an ad in my feed. I understand the concern about spammers and pop-up ads, but that concern doesn’t come up in the case of sponsored feeds. Each blogger can make his or her own decision. Now only the highly popular blogs can earn anything significant from ads on their blogs and corporate and academic blogs are almost immune from the question. Let’s end the debate and start experimenting. At this point, Bloglines has forced the issue and I feel compelled to move to the ads in feeds approach rather than stand idly by and watch others make money off my content.”
With a twinkle in his eye, Kennedy smiles and concludes, “As the song says, if ads in feeds are wrong, I don’t wanna be right. I’m willing to take the heat, but Bloglines has forced my hand.”
Does your blog have a twin out there?