Flipping out over Flipboard

The latest must-have app for the iPad is a “social media aggregator” called Flipboard.  This app presents the content from a variety of links in a consolidated format, or to put it slightly more descriptively:

Flipboard is a free app now available in the App Store that scans your friends’ Facebook and Twitter posts and present the links and articles that they’ve been posting in a magazine-like layout.

The app was launched last week and crashed shortly afterwards due to overwhelming demand, which is a demonstration of either a large market demand for an iPad reader application, or of the snowball effect that social media can produce.

From an IP perspective, our interest was immediately roused by the word “aggregator”, since there has been a long-running dialogue (for want of a better word) between content owners and content aggregators about what constitutes acceptable, and legal behaviour in the context of the internet.

Clearly we weren’t the only people thinking along these lines, because there is already quite a bit of online discussion (on sites such as Techdirt and Gizmodo) about whether or not Flipboard infringes the copyright of content owners.  This question is a relevant one because Flipboard appears to copy content directly from the linked pages in order to make an aggregated end-product which it stores on its own servers.

Without knowing more about Flipboard’s functionality, it is impossible to say anything definitive about its legal implications.  However, it is worthwhile making a couple of points. First, the copyright issue is only half the story.  The other half is site terms of use, which may or may not prohibit Flipboard from copying aggregated content. Second, this case demonstrates that the distinction between “caching” or “browsing” on the one hand, and “unauthorised reproduction” on the other, is often fraught, and highly susceptible to the factual context.  In Australia, the Copyright Act acknowledges a temporary reproduction does not constitute copyright infringement, although the scope of these exceptions is quite narrowly defined (see Copyright Act sections 43A and 43B).

In the meantime, it remains to be seen whether content owners will treat Flipboard as a new platform for presenting and monetising content, or as a mechanism for opportunistic appropriation of content.  Needless to say, we at the IP Whiteboard will be following this with interest.

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