As we left Part I of this post, I was discussing exclusive rights in copyrightable content, and asking why content owners should have the onus to “opt out” of web bots and content scrapers accessing, indexing and/or otherwise caching their content (as applicable), rather than placing the burden on those seeking to use/re-purpose content to obtain permission to do so.  From a personal perspective, I remain an advocate for the copyright holder determining how the exclusive rights are parsed, so to speak – it is a position consistent with the fundamental intent of the law, and an impetus for others seeking to use the content to obtain permission to do so.  Nevertheless, there is an exception under copyright law that permits the “fair use” of copyrighted materials under certain circumstances without the permission of the copyright owner.

Arguably, the “fair use” doctrine under copyright law may provide some limited protection to third party providers such as Flipboard, but in the context of such a reader, the application of the doctrine is far from mechanical.  Under Section 107 of the Copyright Act, there are certain limited circumstances under which the reproduction of a work is allowed (i.e. considered a “fair use”), such as for criticism, comment, teaching and scientific research. However, Section 107 lists four separate factors to be considered in determining whether such use is “fair”:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The Copyright Office provides additional guidance on the “fair use” doctrine in a factsheet here.

Applying this doctrine is how Google News wades into the gray area of the law and how Pulse got into trouble with the New York Times. Flipboard is not currently charging for the app, but once they implement a revenue model, they may find themselves facing the same problems. Flipboard is apparently being sensitive to these issues, indicating a desire to work with content publishers as they look to roll out an advertising/revenue-sharing model.

Frankly, I believe that Flipboard wants to work with content providers/publishers – it has created a platform that graphically presents social network feeds in a manner that, so far, really resonates with users. If this positive response continues, it will also resonate with content providers and publishers to open up their work and perhaps structure their content for the app if Flipboard can work out a revenue model that appeals to them.  Flipboard also provides a link to the website to read the entire story, thereby facilitating additional website traffic to the content provider/publisher (never a bad thing for websites selling ad space on its pages).

Perhaps there is a middle ground – like linking a site’s terms of use with the robots.txt file used by web bots to index web pages via a standardized, open source platform yet to be created so that the licensor’s intent can be technologically ascertained.  The copyright owner will have expressed the terms under which the content can be used, which in turn can be read electronically to ensure use consistent with the copyright owner’s intent.

In case you’re wondering, I am definitely a fan – I find the Flipboard an amazing app with incredible capability.  It’s presentation capabilities can drive the formatting of content specifically for the app, so long as they work with content creators and developers to do so.   In this ever evolving digital world, I can only hope that Flipboard’s developers understand that the contents of the web remain subject to the confines of copyright law – a boundary that is increasingly amorphous in the digital world, encapsulating an area of law that moves a lot slower than technological innovation in the field.

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