Is the DiggBar Content Theft?

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Digg has long been heralded as one of the best and most ethical ways to handle content aggregation. It’s practice of very limited content copying with direct, high-profile linking, has made it something of a standards-bearer on the Web for other sites wanting to get into the business.

However, that reputation took something of a hit last week. Digg announced its new DiggBar along with its new URL shortening service. The new bar, rather than linking directly to the page being Dugg, puts the page in an iframe below a small Digg-hosted pane. This keeps the URL, the visitor and the search engines on the Digg domain while loading the Dugg page.

This has proved to be a very divisive new feature. Power Digg uers like the ability to interact with Digg while reading the article and Twitter users love the new URL shortener. However, some casual Digg users are frustrated with the new URLs (it can make sharing articles more difficult) and content creators are upset that Digg is no longer linking directly to their site.

Some have gone so far as to hint that the DiggBar may be content theft and an attempt to boost their own traffic at the expense of the people they link to.

This begs the question, is Digg doing something unethical or even illegal? The answers are not simple.

Some History

(Note: This is a very simplistic description of framing for those who are unfamiliar with how it works). The technique that Digg uses to create its DiggBar is known as an iframe or inline frame. Iframes allow developers to create the effect of a “page within a page”.

In many ways, an iframe is similar to a YouTube embed. When a site embeds a YouTube clip, they are displaying the content, which is pulled from YouTube’s server and is under their control, as an element on their page. The difference is, rather than a line of JavaScript, iframe uses an HTML tag to tell the Web browser to pull the content from another page and fill a portion of the screen with it.

The result is that, when you look at the source code of DiggBar page, you’ll see the code for the content of the DiggBar itself and what amounts to a link to the source content. However, rather than creating a clickable link, the iframe opens the content below the bar.

The technique has been around since 1996 and was heavily frowned upon when it first became popular. Initially it was used both for creating sites, such as having navigation next to or on top of the main content, and for “framing” outgoing links, such as what Digg is doing.

As a site development technique, it lost its popularity largely due to its poor performance with the search engines (search engines, especially then, only seemed to read the frame page, not the pages within it). As a method of linking, it was largely shunned as being bad form or even greedy.

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However, in recent years, framing has begun to make something of a comeback. Though About.com has used iframes on many of its external links for years, StumbleUpon reintroduced many to it by using it as part of its site, to help people vote up and down links without a browser add-on. Also, several URL shortening services, such as Owl.ly, have been using iframes to add features and keep track of stats.

For the most part, the response to framing has been fairly muted. However, Digg is the by far the largest site to make such a broad use of framing (save perhaps Facebook, which adds an iframe to some outbound links) and that, combined with the fact Digg’s primary function is to link to other sites, has made it a target.

But is framing illegal? It is a good question that hasn’t been wholly answered.

The Law on Framing

The case law on framing is surprisingly thin. Though the technique has been around for over a decade and several suits/disputes have come out of it, all of the cases seem to have been settled out of court.

However, the case of Washington Post v. TotalNews may provide some clues as to the potential legal risks. The case, which was settled in 1997, saw The Washington Post sue a news startup called TotalNews because the site was using frames to link to Washington Post content rather than plain hyperlinks.

In the case, there were three primary objections that seem potentially relevant to the DiggBar:

  1. Trademark Infringement: Displaying one’s logo over another person’s content could be seen as implying a relationship between the two that does not exist and that, in turn could, be considered trademark infringement. For example, if the New York Times felt that the DiggBar was causing people to believe that Digg sponsored the newspaper or that the NYT endorsed Digg, they might have grounds for a trademark suit. Furthermore, if the NYT felt that the DiggBar caused confusion as to the origin of the reporting, they might have similar grounds.
  2. Copyright Infringement: Though framing doesn’t make an actual copy of the page that is being framed, one could argue that framing both violates the distribution right under copyright law and that it creates a derivative work based upon the original. Either of these would be a violation of the copyright holder’s exclusive rights, if it could be shown.
  3. Tortious interference with Business Relationships: By reducing the amount of visible area on the page and running their own advertisements (should they appear), the DiggBar could be accused of interfering with existing advertising partnerships on various sites.

None of these items are a perfect fit and all require a bit of stretching. However, it is easy to see how, in each case, an argument could be made and be successful. But since the TotalNews case was settled out of court, with TotalNews agreeing to stop using frames, there are no legal rulings on these issues.

The question is not just whether these approaches could work, but whether they could work in 2009, with more tech-savvy judges. It is very difficult to say and there are no clear answers.

Still, there are clearly many ways that a litigious-minded content creator could sue Digg for the DiggBar.

The Ethics of Framing

If the legalities of framing are muddled, then the ethics are divisive. Some people feel that framing is perfectly acceptable, others think of it as a form of content theft. It is often a matter of personal perspective.

Those who do object to framing typically do so on one of three grounds:

  1. SEO Issues: Though there is some debate as to how framing affects search engine ranking, at least one blogger has seen lower PageRank posts get bumped from Google in favor of Digg URLs already (see comments). It is pretty clear that linking to a page with the content in a frame does less good in the search engines than just linking to it directly.
  2. Advertising and Integrity: Though the DiggBar doesn’t display ads yet, it is foreseeable that it will at some point. Many sites don’t allow ads sites that link by framing are the only way that ads are displayed along side their content. Many people aren’t comfortable with other sites earning money directly off of their content, especially when they aren’t doing so themselves. Furthermore, other sites don’t like their pages to be altered in any way, including via framing.
  3. Visitor Interference: Framing not only reduces the screen real estate that the visitor has to read the content, but it also impedes their ability to copy the source link. Though Digg is also billing itself as a URL shortening service, there are still many cases where one wants to copy the full, original URL (IE: Three Count columns). Framing makes that more difficult to do and encourages users to pass around links to other domains.

(Note: Do you have a particular objection I missed? Leave it in the comments and I may add it in.)

The end result is that even Webmasters who are not outraged by framing still, usually, prefer direct links for most things. The question is whether or no Webmasters will be outraged enough by the DiggBar to try and force them to change.

Breaking the DiggBar

Since framing is over a decade old, so are the techniques for breaking them. If you don’t want the DiggBar, or any such frame, to display over your site, all you have to do is add a few lines of JavaScript code to “break out” of the frame.

The technique does work on the DiggBar, as it will any iframe-based system. However, it will not fix the SEO issues mentioned above since search engines will still see the frame page and can not process the JavaScript on your page to know that you do not want the frame there.

In short, this technique only helps ensure that visitors do not see your site with the DiggBar, search engines and other spiders will still see Digg’s content with a reference to yours.

Personal Thoughts

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I’ve always been of two minds when it comes to framing. Sometimes, as with StumbleUpon, there is a legitimate use to the framing and little harm done by it (StumbleUpon links don’t pass along any Google benefit that I know of and the framing is necessary for the site to work). Other times, as with About.com, it is a play to maintain advertising and a presence as the visitors leaves the site, all at the expense of the target URL.

The DiggBar falls somewhere between. It isn’t necessary for Digg to work, Digg got along just fine without it, and the features it creates are not that important. Digg could have just as easily made a URL shortening service without the DiggBar (perhaps linking to Digg’s permalink). However, the bar does make Digg easier to use and provides features power users will find compelling, including comments and related links.

However, do these features justify the treatment webmasters are getting at the hands of Digg? I don’t believe so. Digg is expanding its presence into the sites it links to and those sites, in turn, get a short URL and the traffic Digg provides (which can be quite a lot for items on home page items). Whether or not that is a good trade overall will depend on the webmaster, but it clearly isn’t as good of a trade as everyone got before.

I’m not so much outraged by Digg as I am disappointed. Digg has always been the poster child for how to run a business off of other people’s content in a way that was fair to content creators. They built a great community and supported the Webmasters they link to. The DiggBar tilts that relationship more in favor of Digg and without any real consultation with bloggers.

I’m not ready to liken Digg to RSS scrapers and spam bloggers, but they certainly have made a misstep here that hurts webmasters. My hope is that they will back away from this or find a way to reintroduce the features without the drawbacks to the external links, but they seem pretty set on it.

Digg may not be evil, but they are certainly more evil then they were two weeks ago.

Bottom Line

Framing isn’t going anywhere and the flagging economy, especially the advertising market, is only going to make things worse. As sites work to squeeze every advertising dollar they can out of their sites, more and more will turn to this technique to make a few bucks.

However, the legal issues of framing are far from settled and the ethical ones are about as divisive as you can get. Any site that uses this tactic does so at their own risk and it is only a matter of time before someone challenges the techniques both in and out of the courts.

If I were Digg, I would be seriously considering whether the risks associated with this move outweigh the benefits, especially over the long term.

In the meantime, if you don’t like the idea of Digg framing your site, using the frame breaking script will prevent it. I am not going to install it here (as I said, there are other sites with a legitimate use for framing) but it is there for those who need it.

I’m going to have to rethink my relationship with Digg. Having been the subject of two front page stories over the years, I know well how much traffic it can bring. But with the new DiggBar, I have to analyze both what good that traffic will do and also what the long term benefits of being on Digg are.

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