[Update, 8/16/07, 11:50 a.m.: Facebook’s Chief Privacy Officer Chris Kelly has responded that Facebook addresses these issues, but I think there’s more they should do on the disclosure front, and hope there’s more they can do on the technological one.]

Please correct me if I’m wrong about this; I want to be wrong about this. Or I want to learn that Facebook has already considered and dealt with the issue and it’s just not readily apparent to me. But I’m thinking that Facebook’s feeds for Status Updates, Notes, and Posted Items must in many instances be at odds with privacy settings that attempt to limit users’ Facebook activities to “friends only” (or are even more restrictive).

Dave Winer, Mike Arrington, and others have applauded Facebook’s publishing of RSS feeds for various data streams that otherwise would only exist behind Facebook’s registration wall. I’m thrilled about it too; as an Attention Trust board member, I’m firmly behind users owning their own data and being able to zap it around the ‘Net to their hearts’ content. In fact, as Marc Canter and Justin Smith point out, there’s considerable distance yet to be covered in Facebook’s opening up of user data.

But the more I look at it, the more I think there are uncrossed t’s and undotted i’s on the privacy front concerning the feeds that are currently available. Part of the reason Facebook has been so enthusiastically embraced is the company’s approach to privacy, and the ability for a user to control not just who sees his or her profile, but also the constituent parts thereof. It’s here that the walled garden aspect of Facebook is a positive. By restricting who can see your information (and what chunks of it), you’re able to largely vanquish the spam monster, and be comfortable (assuming no major security snafus) sharing more sensitive information than you would not otherwise broadcast to the Web at large. E.g., I want my Facebook friends to have my address, phone, and email, and to see where I am and what I’m up to; I don’t necessarily want all my readers, listeners, and search engine visitors to have that information. Those who never join a network in Facebook (whether Regional, College, or Work) can purportedly rest easy that only those they specifically accept or invite as friends will see any of their activity. And even for those who join a network, as Facebook urges you to do (witness this from my Profile Privacy Settings: “[B]ecause you have no networks, most people cannot get to your profile to see those things. Facebook is most useful when you let some people see your profile, so you might want to consider changing these settings”), there are many ways to supposedly ensure your activities are available to “friends only.”

Facebook’s Status Updates are a perfect example:

By default, if you have no network, only friends can see your status updates. If you are in one or more networks, you can manage the settings to achieve the same result. In either case you can also choose whether friends can subscribe to your status updates. As Dave Winer has blogged, among the feeds Facebook is generating are those for friends’ status updates and your own.

The privacy settings and syndication options on Notes and Posted Items operate similarly. (And, I found three more feeds I haven’t seen discussed anywhere yet; read on.) Notes is a Facebook-created application that lets you “blog” within Facebook — either by importing posts from an external blog via RSS or Atom (hmm, we’ll have to think about the copyright/implied license ramifications of that in a later post), or by writing something new in the application itself. Like Status Updates, Notes can be designated for friends-eyes-only:

You can further dictate who can subscribe to your Notes: anyone who can see them (i.e., friends only, if that’s what you’ve selected), or no one at all:

There are are two Notes feeds available (neither of which I’ve yet seen crop up in the Facebook feeds discussion): one for your Friends’ Notes,
and one for your own.

The Posted Items application is similar to Notes, but is link oriented: users highlight and can annotate links either by pasting in a URI or using a toolbar bookmarklet. The privacy options for Posted Items are “friends only,” “only me,” or “no one:”

As has been much discussed in the last couple of days, there’s a feed for your friends’ Posted Items:

There’s also (and I haven’t yet seen this one discussed) a feed for your own:

So to recap, Facebook is at minimum — and there’re probably more, based on all the needle-in-a-haystack discoveries of the last 48 hours — publishing feeds for:

• friends’ status updates;
• your own status updates;
• friends’ notes;
• your own notes;
• friends’ posted items; and
• your own posted items.

So where’s the data leak? Here’s where. These feeds are public. All one needs in order to view and use them is the feed’s URI. There’s no requirement that a reader or user of the feed be the “friend” of individuals whose data is in the feed, or even that the person be logged into Facebook. Are you following me?

So say you’re my Facebook friend. And say further that you, like me, have dialed your “Status Updates” setting to “friends only” for something like the reason I mentioned earlier — you want your Facebook friends to know where you are and what you’re doing, and you want a secure way of sharing that information with them; you don’t want it sent to the Web at large. Well, you’ve got a problem. Because I (or any of your friends) can thwart that security simply by posting the link to the feed for my Friends’ Status Updates. Or by broadcasting the feed data via something like Jaiku (the Feeds option), or Twitter, or Google Reader’s Shared Items, or a wiki, or…

This potential collision between Facebook’s privacy settings and its feeds extends to Notes and Posted Items too, since the visibility of both can be restricted to “friends only,” “only me,” or “no one,” and since entries in each can (and often do) incorporate not just imported blog posts and links but material generated in the Facebook application itself, with the expectation (in the “friends only” case) that the material going out to a limited audience. Yet, because friends can do whatever they want with the feeds (and not everyone is terribly selective about who they accept as a “friend”), the audience for Notes and Posted Items can easily become much bigger than a user’s privacy settings might lead him or her to believe likely or possible. As mentioned above, in Notes at least there’s a separate privacy setting for Syndication, which allows users to specify that “no one can subscribe.” But that option is pretty easy to miss, sitting two clicks past the main privacy page. It’s also an overkill remedy for those who do want their friends to have access and flexibility, but don’t want the information to go further.

As Mike Arrington reminds us, there was a good deal of consternation last year when Facebook introduced its News Feed and Mini Feed features — and those didn’t/don’t take data designated “friends only” and make it potentially available to anyone. The seemingly inevitable clash between what’s in Facebook’s feeds and what’s in its users’ privacy settings strikes me as a much bigger deal. What am I missing?

And though unrelated to Facebook’s feeds per se, it’s worth noting that once you start playing around with all the fun non-Facebook applications, you lose the ability to tell Facebook not to share information about you through its API:

To wrap up, it seems to me there’s a divide between the warm, fuzzy “friends only” feeling of security Facebook strives to give its users, and the reality of what can be done with feeds containing “friends only” data. I’ll leave it to folks more technologically adept than I to tell me how Facebook can close that divide and still continue down the much desired and anticipated path to openness.

Mario Romero’s Facebook application, which shares your Google Reader shared items to other Facebook users, demonstrates how well it’s possible to know someone based solely on what they browse and share. I’d love to know how the application’s tag clouds are created. It’s a little spooky how well they capture your interests.

There’s much to love about Facebook, but the thing I’m most hooked on at the moment is seeing what you’re reading.

I know what you’re reading, that is, if you’re sharing items using Google Reader, you’ve added the Google Reader Shared Items Facebook application (and pointed it at your Shared Items), and we’re friends or have joined the same group at some point. If so, chances are I’ve subscribed to your Shared Items in Google Reader. That’s 25 of you so far, along with 69 other feeds. It’s no Scoble-sized subscription list, but it’s still a youngster, just a few days old.

The 25 “Shared Items” feeds on my subscription list are by far the most intriguing. They represent 25 intelligent and eclectic people regularly combing through their individual collections of probably 100+ feeds, and flagging what fascinates them most. When their “Shared Items” enter Mario Romero’s Facebook application, what pulses out the other end is the steady flow of what’s influencing the influencers.

Though you might fear the hive mind would congregate around the same handful of queen bees, there’s very little overlap in what this group of people decide to “share.” 2-4 stories a day at most is all I’m seeing.

Robert Scoble called this a Digg killer, particularly when it comes to the Facebook application’s “top stories” component. But when people’s shared items become part of your steady information diet, it’s like layering intelligence on top of Digg and everything else, like turning loose a scarcely-joined group whose unthinkingly collective job is to dampen noise and boost both signal and serendipity. Mihai Parparita at Google says the marriage of Reader and Facebook “shows how open platforms (Reader’s and Facebook’s) can be used together without needing permission from either party.” In the end though, it’s the individual users giving their permission — by sharing Reader items, participating in the Facebook ecosystem of friends and groups, and adding the Shared Items Facebook app — that take it to the next level. At that point it becomes Techmeme with a thrumming, Mark of Gideon heartbeat, and more fine-grained measures of importance than popularity.

[Update:] More on this from Josh Young: “I want to use this facebook app to actively subscribe to many individual’s shared items feeds. That’s because, in the end, there’s really only one important feature the app needs: aggregation how I want to aggregate.”

Yesterday, I was extolling the policy virtues of automation at VON 2007.  Today I was reflecting that until super-intelligent agents arrive and do it for us, humans need to be sure to actually read the documentation attached to the APIs enabling some of the most compelling automated transactions and interactions we see today.

I spent the day at Under the Radar, which lived up to its reputation as a very cool event.  Dan Farber blogged much of the coolness, and I Twittered some as well.  But one thing caught my attention as a slumbering yet big issue for Live Web companies:  if you offer an API, and well you should, people are going to use it.  However, they might not be all that careful about reading and following your API's terms of service — assuming, and let's hope it does, your API has terms of service.  This is true even when the people using your API are in another part of your very own company.  (See:  OUTRAGEOUS: Yahoo!™ STEALS copyrighted photos from Flickr users!)

Consider this scenario: 

1. Site 1 provides a platform for submission and sharing of user generated material.
2. Site 1 offers APIs enabling third party mashups of Site 1's user submitted material in heretofore unimagined, creative ways. 
3. Site 1 neglects to give users the means to affirmatively license their submitted material for third party use; or, a large number of users decline to license, even though given the chance.
4. Site 1 fails to warn Site 2 (and Sites 3 - infinity) that some or all of its users' submissions are not licensed for third party use.
5. Site 2 develops an application, using Site 1's API to make Site 1's user submitted materials available for use or viewing by Site 2's users.
6. Mayhem, outrage, rioting in the streets, denial of service attacks, etc. ensue, instigated by Site 1's ticked off users.

There's a twofold lesson here.  First, if you're going to make user submitted material (ex)portable and mashable through an API, provide a licensing mechanism for your users.  While you're on the right track when you "encourage users to contribute their creations to the public domain or consider progressive licensing terms," Ev and Biz, as a practical matter without a convenient and automated means to apply such terms everything users submit will be "all rights reserved."  Flickr's incorporation of Creative Commons licensing means developers using the Flickr API can readily incorporate tens of millions of Creative Commons licensed works into their products and services.  I'm not sure developers using, for example, the Twitter API (checked out Twittervision yet?  mesmerizing) can incorporate any Creative Commons licensed works — and that's not because Twitter users don't want to license their work.

Second, API terms of service should alert developers to this napping but particularly grumpy grizzly.  Flickr's does this nicely:

1. Licensed Uses and Restrictions.

The Flickr APIs are owned by Flickr and its parent company Yahoo! Inc. (hereinafter "Flickr") and are licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These terms define legal use of the Flickr APIs, all updates, revisions, substitutions, and any copies of the Flickr APIs made by or for you. Flickr user photos are owned by the users (the photographers) and not by Flickr. All rights not expressly granted to you are reserved by Flickr.

a. You shall:

1. Comply with the Flickr Community Guidelines at www.flickr.com/guidelines.gne, the Flickr Terms of Use at http://www.flickr.com/terms.gne, and the Yahoo! Terms of Service at http://docs.yahoo.com/info/terms/.
2. Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn't own the images - Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr's provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners' requirements and restrictions, which may include "all rights reserved" notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners' requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: www.creativecommons.org or www.flickr.com/creativecommons.
3. Comply with any other terms and conditions a user has attached to his or her photo. For example, if a user marks a photo as "private" after using your service, your application must reflect those changes as soon as reasonably possible. If your application has any cached copies of photos that have become "private," you must remove as soon as reasonably possible.
4. Remove from your application within 24 hours any Flickr user's photos or other information that the owner of the photo asks you to remove.
5. If you use the Authentication APIs, insert a standard header that we will provide into pages you build that access the Flickr API. It's important to us that users have an easy way to return to Flickr if they wish, and have some reference point (the logo) to show them that they're still connected to Flickrland. http://www.flickr.com/services/partners/.
6. Disclose in your application through a privacy policy or otherwise displayed in the footer of each page, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers.

These terms, by the way, are right in line with the principles of the Attention Trust; bravo, Flickr.   

"Flying and virtual" contracts like machine readable licenses are absolutely fantastic.  Please just make sure that in our exuberance to encourage uptake and creativity through APIs, we don't make the mistake of forgetting about such licenses altogether, or of remembering them when it comes to user submissions but forgetting when it comes to API documentation and use.

I was one of several folks who spoke today on policy issues at Video on the Net.  Since my talk riffs on Jeff Jarvis's, which I blogged earlier, and since I actually have notes for a change, here they are.  And here's a Flickr set of the accompanying slides.

Jeff Jarvis told us Tuesday that we're reinventing TV, and this time it's ours.

On the legal front, we're caught in a tempest of alternately dreading regulatory attention and inviting it ('Net neutrality; Pulver's hands-off-video petition; Skype's cellular Carterfone), DMCA ping-pong, fair use flip-flopping, and polarizing coypright wars. 

Though this can all seem a bit dark and depressing, what it really means is a subpoint to Jeff's:  we get to reinvent not just TV but its law.  And this time it's ours. 

Along those lines, Jonathan Askin has nominated himself for the post of Chief Justice of Second Life.

How and why to we get to reinvent the law?  Because in the lack of a framework built to support these activities, sistas (and brothas) are doin' it for themselves.  And can and should keep doing it, and do even more.  As means and mores for interacting with one another, and with one another's creative works, are established, these measures act to fill the gaps.  And when courts and regulators see an economically and socially healthy ecosystem arise from these gapfillers, there will be scant legitimate motive (special interest money and lobbying efforts notwithstanding) to undo them.  Hence, we get to do the law the way it should be done, the way that works best for this arena.  But accomplishing this (or accomplishing it with sufficient speed) requires recognizing what's at stake and what needs to be done.  It won't happen by continuing to try to bolt Video-on-the-Net legal considerations onto laws and processes trapped in a music- and movie-on-disk time warp.

If you're a regular person, when you think about the future you probably imagine a Minority Report world of flying cars and virtual displays.  If you're a certain odd species of lawyer, you might imagine contracts that are both flying and virtual.  Contracts formed not by mailing or faxing pieces of paper and blue or black (but not red) ink signatures back and forth.  Contracts formed by the relevant personal agents and bots having sex with our preestablished permissions and parameters data.  Sex is a good metaphor.  Jeff Jarvis discussed how metrics are sex for advertisers.  Doc Searls says federated identity is a series of vendors having sex with our data.

It's not made explicit frequently enough, but one of the core purposes of Creative  Commons is to let agents and bots have sex with our permissions data.  That's why the licenses are machine readable.  That's why they can be embedded as metadata in digital files.  Accordingly, we see the early progenitors of flying contracts today. 

On the creator side, Creative Commons lets you express usage conditions in a machine readable way.  On the user side, Creative Commons search, such as that in Flickr, lets you locate works that fit your requirements, both substantitively and from a permissions standpoint.  (Example:  let me see all the pictures of candy, or all the bass blues riffs, that are licensed for commercial use in exchange for attribution.)

A few interesting facts about Creative Commons:

• Though it's impossible to know precisely how many works carry creative commons licenses, it's at least in the tens of millions, based on the Flickr Creative Commons search index alone.
• Despite the existence of at least tens of millions of Creative Commons licensed works, in the almost 5 years Creative Commons has existed its licenses have come under judicial scrutiny only a handful of times, and in each instance have been found valid and enforceable.
• Almost as many Flickr using Creative Commons licensors want to propogate use of Creative Commons licenses through use of the "Share Alike" condition as those who are interested in controlling their works through use of the "No Derivatives" condition.

The realities of Internet video, and 'Net distributed creativity in general, require turning Cole Porter on his head and giving parties new, more practical, streamlined ways to say "Let's Behave!"  Here are some more examples.

• Code is law, Creative Commons.  We've discussed.
• Lisensa:  blogs only for the time being, but the Creative Commons on steroids approach, with creator dictated payments enabled, is the point.  (I'm on the advisory board.)
• Brightcove (from the FAQ):

Licensing Services – Dreaming big and looking for content? Our Licensing Services help you acquire the perfect video content for your site or device. Soon, you'll be able to browse the Brightcove Syndication Marketplace for content that you can buy on a performance basis. Just pay for what you use.

• YouTube:  New role front and center role for Terms of Service; no longer just
  something to ignore, now a living, breathing, dynamic relationship
  building machine.  Revver, Metacafe, Videoegg, etc.  Different approaches with a common theme that perhaps should be the official slogan of reinvented TV:  "License it, benefit."  (In money, attention, or both.)
• Microformats:  one means of addressing the problem of RSS and implied license uncertainties.  (See Myheavy.com fiasco.)  Also key to provisioning the new law's infrastructure (Creative Commons search as with Flickr; "flying contract" transactions)
• Putting clickthroughs to work.  (WordPress plugin for podcast releases.)
• More automating of the automatable:  Chilling Effects' DMCA
  counterdesignation tool; Wendy Seltzer saga's latest.
• And stabilizing the unstable:  CIS documentary film fair use project.  (Take it
  a step further, envision a TRUSTe for fair use, based on compliance
  with approved best practices.)
• Planting and harvesting from outside unlicensed walled gardens:
  Magnatune, CC Mixter, Pump Audio, Podsafe Music Network.
• Everyone's rights matter, not just the big boys':  Attention Trust (I'm on the board), Project VRM

In his science fiction novel Eastern Standard Tribe, Cory Doctorow wrote about a not-too-distant future where network-enabled legal dealings flow smoothly, unobtrusively, and correctly.  (Actually, the book is filled with far more dramatic and interesting things, but I've never quite been able to get past this subtext.)

The reinvented law of reinvented TV is built — route-around by route-around — on the damage of things like byzantine music licensing rules, nonexistent Hollywood film licensing alternatives, antiquated procedural niceties, and the inability of our undeniably glorious (when compared with other alternatives) legal system to deliver certainty on a host of business-critical and livelihood-critical issues.

You, all of us, can help build the new law by focusing our energies on these tools and building or demanding more of them.  Before long they'll draw in the denizens of the old law — witness the flurry of licensing deals struck with the iTunes and YouTubes of the world.  As this happens, the new law becomes mainstream and ultimately formally endorsed by our legal institutions.  This reinvented law doesn't throw out the old one.  That's not what Jeff Pulver means when he says sometimes it's better to ask for forgiveness than permission.  What he means is the more we streamline these relationships, the more we build law that works.

[tag: von07]

The description of Jeff Jarvis's talk on the VON Web site captured precisely what he covered:

Our medium [Internet TV] is so new, we have the chance to do things right, to set ourselves up for success. What do we need to make our small TV revolution successful in advertising, measurement, networks, guides, marketing, PR? We need to get our act together. 

But you can judge for yourself; here are my notes: 

We can nurture an explosion of commerce, but we've got to get it right.  Weblogs didn't get it right.  "To advertisers, metrics are sex.  And size does matter."  Advertisers can't track our performance and their clients all fear us.  They lose, but so do we.  Helping people find the good stuff is important, but remember there's no uniform definition of what's "good" any more.  You don't have to be the blockbuster any more.  The tail of the dinosaur is far more powerful than the dumb brain of the dinosaur.  It's the vastness that matters, and video is now a form of communication.  Size doesn't matter; quality does.  Let's not get stuck in the same traps of old media.  We can do things right.  We are reinventing TV.  It's ours.  

Exploding Video is Jeff's new, very small, television network.  He's learning, learning lots about finding the right voice.  The roughness and bluntness of our new small television gives it credibility.  Our roughness is at least endearing.  We don't want to be old TV, and we're not sure what we should be yet but I hope we never decide.  Per hour cost of network television is $300k/hour as opposed to 18 Doughty Street:  $140/hour, all in.  

TV needs to go to where people are.  This is why Viacom's move against Google is such a collosal mistake.  Fans recommending good stuff is invaluable.  Jeff's 15-year-old son never clicks through channels with the remote.  He finds things only through recommendation.  Monetize and control is the wrong way.  Monetize, Jeff gets.  But we need to figure out a way to monetize without control.

This doesn't mean you ignore the big guys, you work with them.  When they showcase you, you get audience, they get "cool points."  Then there's money.  "I'm not getting enough.  I'm not getting any."  Dina Kaplan at Blip.tv is doing a tremendous job.  What do we need?  Measurement.  We have to give advertisers orgasms.  Metrics are sex.  We have to serve people where they are.  Metrics have to be standard, public, and verifiable.  We need to recognize the value of links and recommendation.  Every media element needs to have a unique identifier.  We need experimentation.  It's 1954, as far as this TV is concerned.

We need ad serving.  The only way the big boys will play is if they can put things multiple places.  We need to sell ads across networks.

We need trust and identity.  Who made it?  Advertisers won't go for anonymity.  It's also important for creators to get their money and credibility.  

We need guides.  Network2.tv is one.  We're all critics, and we're all networks.  We need to get judged on our recommendations.  The idea of people as guides matter.  The whole role of criticism has changed.  It's social, it's trusting your friends.  But it's hard to find the good stuff.  It's a mistake to concentrate on the flaming farts.  There are gems in there, but it's difficult to find them.  There's hope on Blip.tv, where Jeff found the talent to do his show Idol Critic.  Dina Kaplan and company are developing talent and finding good people.  Network2.tv is another chance to find where the good stuff is.  Jeff started Exploding Video to help find guides.  

The world isn't bifurcated into "premium content" and "the rest."  There's good stuff in the rest (even if it's not yet making money).Viacom is a fool for demonizing fans for recommending shows.  CBS on the other hand, also in the House of Sumner, is trying to find as much as they can to put on YouTube.  

Finally, we need protection against regulation.  Doc Searls:  it's a mistake to think of this stuff as content.  It's conversation, and when you regulate it you regulate our speech and our lives.  We have to be fearful, stand together, and fight together to keep TV ours.  It is our place, protect it.  

We're only going to make TV that's better (it's 1954).  We have a new definition of better, and best.

Q from a New York Times person:  if you do all these things, aren't you just becoming big media?  A:  The economics of this world are different, the definition of a hit is enough to survive.  

Q from a ZDNetter:  who's we?  A:  Anyone who wants to make TV. 

[tag: von07]

Update, 5:32 p.m.:  Consummate and indefatigable blogger that he is, Jeff blogged his own talk.

If you're interested in some terrific audio examinations of several of the topics (ir)regularly covered here, be sure to check out these current offerings:

• on attention, the "Who Owns 'You'" panel from Supernova 2006, at IT Conversations
• on digital identity, the PodLeaders interview with Kim Cameron (if digital identity is your thing, you probably already listen to The Story of Digital Identity too, I hope)
• on the future of DRM, TalkCrunch talks with Yahoo! music executives

Also, we did a this WEEK in LAW with Jason Calacanis and spent a good deal of time on RSS and implied licenses (or lack thereof).  I relistened to the show yesterday (we recorded back in November), and have to say that even where our approaches and philosophies may differ, I thoroughly enjoy and respect the hell out of Jason.

I love the writing in the first two paragraphs of Richard Rushfield's L.A. Times story, Muppets Gone Wild:

SWEEPING through the debris field that makes up today's YouTube catalog, a few emerging schools of webcamography are evident: confessional videos by teenage girls, stolen footage of Jon Stewart and Asian game shows, caught-on-camera car accidents and faux pas, adorable pet moments and rampaging, ultra-violent, foul-mouthed Muppets.

Not surprisingly, it is that final genre that is attracting the great auteurs of the Internet today. Suddenly, everywhere you look across the Internet, Kermit and Miss Piggy, Ernie and Bert are cussing each other out like gangstas, battling to the death with armored weapons and restaging the edgiest films of our time.. The Muppet remix features the likes of "The Muppet Matrix" and "Murdah Muppets." The Web and its accompanying tools of low-budget editing have granted filmmakers the power to manipulate and reframe the great characters of entertainment to their hearts' desire. But with this freedom, an arms race has also begun, sending filmmakers in a competitive frenzy to place the Snuffleupagus in ever more compromising positions.

I was unaware of the upsurge in this particular parodic genre but look forward to exploring it further.  Rushfield points out this kind of work dates back to at least 1987, but it's the socially networked 'Net that provides the audience factor.  On related legal fronts, see:

• Leslie J. Lott and Brett M. Hutton, Trademark Parody
• Marty Schwimmer, Discuss Parody Defense To Inevitable Demand Letter and More on the Parody Defense to Trademark Infringement
• Baila H. Celedonia, Parody as Fair Use
• James S. Huggin, Parody and "Fair Use"
• Stanford Copyright and Fair Use, summaries of parody cases

Columbia law professor Tim Wu has a brilliant essay at Slate entitled Does YouTube Really Have Legal Problems?  How the Bell Lobby helped midwife YouTube.  I say "brilliant" because Professor Wu goes beyond the hype around YouTube as one of the 'Net's current infringement bogeymen, and emphasizes the fascinating role reversals and strange-bedfellow context behind GooTube's invocation of Section 512 of the DMCA as its shield in the copyright wars.  First, Professor Wu offers some historical perspective concerning the birth of Section 512, the DMCA's safe harbor against liability for third party infringement:

This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as "a series of tubes." But back in 1995, Hollywood was insisting that the Internet be characterized as "a bookstore." And a bookstore, unlike a series of tubes, breaks the law if it "carries" pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those "tubes" over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood's reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman.  …

He goes on to aptly characterize the central role this provision has come to play in the legal and economic life of the Internet:  "[Y]ou might call §512 the Magna Carta for Web 2.0."

Finally, Professor Wu discusses how the choices Section 512 offers to copyright holders gives rise to a new phenomenon, "tolerated use:"

What's really interesting is that the content industry actually likes §512 more than anyone will admit. The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that's ultimately a nice arrangement.

Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don't ask, don't tell," you're getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build.  …

The upshot is, as YouTube goes mainstream, copyright's etiquette rules are becoming clearer. Yes, these sites can make it easier to infringe copyright. But so long as that's not the principal aim of your company, you have more breathing room today than you once did.

In the wake of the U.S. Supreme Court's ruling in MGM v. Grokster, it remains dicey to put much stock in such "breathing room" and "tolerance."  Consistent with a past observation of Fred von Lohmann's, as norms develop around the propriety of certain activities and whether they are on balance societally salutary or detrimental, it is less than ideal to leave the determination of whether those activities are lawful and/or permissible to a decidedly interested party.  Instead, the "tolerated use" trend Professor Wu has flagged in connection with Section 512 is precisely the sort of thing that can (and I think eventually will) prompt courts and other lawmakers to convert "etiquette" into law.

For related discussion, see:

• Cecilia Ziniti
• Peter Lattman
• Tim Lee, and, via a fascinating comment to Tim's post ("Could [the] DMCA be a double-edged sword?;" actually, it has so many edges I've begun to lose count),
• Crosbie Fitch

Jason Calacanis has never made a secret of his views on whether distributing full content via RSS entails any implied license.  His answer?  N-o, with a locked and loaded legal team and strategic sanctions to boot.  His most recent reiteration of his perspective is here:  Newsgator is not stealing our content (or "One more time: our full RSS feeds are for individual, non-comercial use ONLY").