Flipboard Wades Into Murky Copyright Waters Where Google Lives

Flipboard, a new content-browsing app for the iPad, emerged on the scene this week to much acclaim — so much that the service was hobbled by the demand. But uptime issues are just one of the thorns that Flipboard has to worry about as it tries to build a company around its application. That’s because the iPad app also raises some fairly sticky issues related to copyright, as Joel Johnson has pointed out in a post at Gizmodo. In many ways, Flipboard has opened itself up to the same kinds of legal headaches that Google has been battling related to Google News and Google Books.

When Flipboard first appeared, I assumed that it was essentially a new kind of RSS reader, and that it would pull articles or blog posts in via the public content-distribution feeds from various sites that people linked to in their Twitter or Facebook streams. But as co-founder and former Apple engineer Evan Doll describes in the Gizmodo post, Flipboard actually pulls the content from sites that are linked to directly, by using its own “parsing” engine, and caches all of that content on its servers.

As web-programming guru Dave Winer — developer of the original RSS standard — noted in a blog post after Flipboard launched, doing this is known as “scraping.” Plenty of unscrupulous sites and services scrape content in this way, and republish it without asking the permission of the content creator or whoever owns the rights to that content, which is pretty clearly a breach of copyright law. Although the principle of “fair use” allows others to republish some content for certain purposes, it doesn’t allow another site to take all of the content without permission (for more on the complexities of fair use, see this EFF backgrounder). In the case of a photo blog such as Boston.com’s Big Picture, for example, the Flipboard app pulls in all of the photos.

This raises the same kinds of issues Google News has been wrestling with for several years and that have gotten it into hot water with content producers. The service pulls in content from newspapers and other publishers — which it caches on its servers — and displays it, and links back to the original source. As Flipboard co-founder and CEO Mike McCue told PEHub in an interview, the iPad reader also pulls in the full content, but only shows the reader a small chunk, with a button that leads to the entire article. McCue says that Flipboard respects companies that don’t want large amounts of their content shown, such as the New York Times (another iPad news reader called Pulse recently got into trouble with the NYT for pulling in more of its content).

Google has made the same arguments about Google News — namely, that it is willing to honor whatever restrictions publishers want to place on their content, and that the robots.txt file allows them to block or direct Google’s indexing engines however they wish. Content companies, however, have argued that copyright law shouldn’t put the onus on publishers to opt out of scraping, but should require companies like Google to get permission first. Both newspaper companies and book publishers have also argued that regardless of what they do with robots.txt files, Google copies their content in full on its servers, and this is also an infringement of their copyright.

Another key factor in arguing “fair use” of content is whether it affects the economic value of the original, which is likely one reason why Google News didn’t carry advertising on its pages until recently — since newspapers and other content producers could argue that it is using their content to generate revenue. Flipboard is wading into this thorny issue as well, since it plans to carry advertising in the app (CEO McCue says that the company is looking at working with content companies to carry their ads, but may also carry some of its own as well).

More than anything, what these ongoing debates show is that copyright law is woefully inadequate in dealing with the way content is atomized and changes shape on the web, and through apps and services like Google News and Flipboard. The courts have yet to find a way of balancing the rights of content creators and the benefits that such services provide for readers and consumers, and so the debate rages on. Are they parasites, or value-added services that publishers should be thankful for?

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