Mike Ash writes a widely read development blog, which he makes available as an RSS feed. Mike got an email from Apple letting him know that they planned to include his feed in their iOS 9 News initiative. Nice to be noticed, right?

These are the terms Apple included in the email:

• You agree to let us use, display, store, and reproduce the content in your RSS feeds including placing advertising next to or near your content without compensation to you. Don’t worry, we will not put advertising inside your content without your permission.
• You confirm that you have all necessary rights to publish your RSS content, and allow Apple to use it for News as we set forth here. You will be responsible for any payments that might be due to any contributors or other third parties for the creation and use of your RSS content.
• 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.
• You can remove your RSS feed whenever you want by opting out or changing your settings in News Publisher.

Pay special attention to that “indemnifying Apple” item. It’ll come back up in a minute.

The email continues:

If you do not want Apple to include your RSS feeds in News, reply NO to this email and we will remove your RSS feeds. [emphasis Apple’s]

Mike continues:

Let me get this straight, Apple: you send me an e-mail 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?

This makes typical clickwrap EULA nonsense look downright reasonable by comparison. You’re going to consider me bound to terms you just declared to me in an e-mail as long as I don’t respond? That’s completely crazy. You don’t even know if I received the e-mail!

I am completely mystified by this email. If I got the email, I would carefully check the headers to make sure this was from Apple. It is so tin-eared it sounds almost like a phishing attempt of some kind.

To be clear, the issue is not about Apple’s right to use Mike’s publicly available feed. It is about trying to impose contractual or license terms without some indication that both parties have agreed to those terms.

When you install a new piece of software, you have to click some form of “I agree” button. Whether that holds water in court is a matter of interpretation (sometimes a different interpretation in different states/jurisdictions). But the idea of imposing contract/license terms without some action on Mike’s part is, at the very least, unfair.

If Mike never got the email, would a court ever rule that he had some obligation to indemnify Apple in the case of a lawsuit? Does the fact of the email being sent provide some legal cover for Apple to claim indemnity? Perhaps, but this seems incredibly one sided.

This one sided opt-out required approach to gathering content just doesn’t seem like Tim Cook’s Apple.