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 pagefweevvce.

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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34 COMMENTS

  1. Jonathan – It's interesting… we were quite down the road on an eerily similar feature about 6 months ago for Regator. Then we took a step back to see if it was the right thing to do, after a lot of arguing we figured that it wasn't and we would piss off more people (and the wrong people) than it would benefit us. Granted, we aren't Digg. We do wish them the best of luck on this and I am sure that they knew what they were getting themselves into (they're not stupid), but changing this perception will be a fairly uphill fight for them.

  2. You've done a great job here touching on not only the legal and ethical issues but also the possible effect this may have on Digg's reputation. After writing the article I thought that it would be ridiculed by Digg users. Surprisingly, however, it has seen some support and many of the comments about it inferred much disappointment with this latest move on the part of Digg: http://tr.im/ioqiI think you left out one of the biggest problems with framing and that is that if one site is allowed to do it, then others will follow. Once that happens, we are right back to the same problem we encountered in the late 1990's with websites that are essentially nothing but frames within frames. Then all hell's going to break loose with lawsuits handed out like they were candy.

  3. I can see the benefit from this in that it might drive the conversation back to the source website, instead of on digg's pages. I think it's fun to get a stumbleupon or digg swarm, but the frustrating part as the originator of the content, is not being included in the conversation. The users will leave comments on Digg or Stumbleupon. That said, I don't like framing. And digg doesn't like me (or digg users, I guess) so it's not much of an issue for me.

  4. Great and fairly comprehensive write-up, Jonathan.If you factor in international copyright issues, the entire affair is bound to escalate into a veritably legal nightmare for Digg: far too many different laws, interpretations of same and national court decisions for them to run a risk of this magnitude. Really makes one wonder what kind of third rate legal advisory team is responsible for letting them implement this stupid, needless thing.For the record: If we should catch Digg iframing even the most trivial of our web sites, they're in for a VERY costly cease-and-desist order, period. (European laws and court practise are positively awful and merciless on this score if you happen to run afault of them. And as an EU based corporation, that's all we have to worry about.)Presenting other people's copyrighted content within your own context (iFrame, navigation bars, whatever) without express prior permission constitutes a blatat violation of copyright, trademark infringement and misleading advertising. And to be perfectly clear on this one as well: this is an opt-in-or-nothing approach – no lame "you can always opt out, after all" argument will cut the mustard here.If a setup behaves like any old parasite, they'll be treated as such. Simple as that.

  5. I agree with your decision to hold back on it. Strangely, with Regator, you are even more tied to the content creators than Digg is in a way because you have a restricted-access group. Upsetting your bloggers would have had a much quicker and damaging response.That being said, I don't think Digg is immune to this either. I think the response might be slow on this one as a lot of people are just now getting over the "Wow! Digg has a URL shortener!" element of it. to see what it really means.If the late nineties are any clue, there's a backlash coming, people just have short memories πŸ™‚

  6. Excellent point there. I actually hammered on that much more on Blogging Tips, once again linking to your site (not the Digg URL of course)http://www.bloggingtips.com/2009/04/07/framing-…..I remember that era very well. It was when I kind of "came up" as a developer (launched my first site in 1996. I remember the never-ending wars between the frames, the frame breakerse, the pop ups and the pop up blockers. It was like Star Wars, but with nothing but Web annoyances as the cast.I really thought we had moved past all of that. Guess I was wrong…

  7. I'm not really sure that it will drive the conversation back to the original site, simply because now users can comment on Digg from the actual page itself, using the frame. It's easier to leave a comment on Digg, your site is the same.I'm frustrated by the conversation element too but at least Digg is a fairly centralized location, unlike many of these so-called aggregators which spread the content to the four corners of the Web.All in all, I guess I'll take it day by day. I don't intend to block Digg or add a frame breaker, but I'm not pleased either.

  8. I agree with you that there are simply too many complicated and convoluted legal issues, as you mentioned, in the U.S. alone. Nevermind international law (this post was over 2000 words already)If you do decide to take any action against Digg, let me know. I'm sure by now someone who read this post has already run something on your site through the Digg URL shortener if nothing else. One doesn't even have to have an account to do that, just an installation of Twhirl.You are right about EU copyright law, it's a very strange beast in places, as the Google News case in Belgium showed…

  9. 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.

    And yet it doesn't change the actual distribution. It just adds a new means of accessing the same content. To call it a derivative work would be the same as calling the act of embedding a YouTube video a derivative work, and I doubt any federal judge would take that seriously.

  10. I'm not trying to support or condemn these theories. Just repeat what was proposed. But I could make an argument that the distribution of the content takes place at a single URL and by making it available at another URL, that is a violation. Much like if I put fliers in a town square, they are in the public but if someone takes them some and puts them in another part of the same town, it doesn't make them more or less public, but does alter the distribution some. Furthermore, since I have the right to distribute the content from my server, others may not do so from theirs, even if the distribution is similar technically to a link.The derivative work argument comparison with YouTube doesn't work as YouTube provides the embed code thus giving tacit permission create derivative works with that code. I don't think such permission exists with just a Web page, even if it is just an HTML hack. Furthermore, some lawyers have argued, with varying degrees of success, that the derivative works argument could be used to go after people who embed YouTube clips they know to be infringing. The clause is rather broad in that regard.Once again, not meant to support or condemn, just discussing.

  11. The funny thing about the evolution of business is that majority of advances happen within the realm of such controversy. Without piracy, I wonder if Microsoft would be where they are today. It would be a rather easy thing for MS to protect their office suite to prevent piracy. But they did not. Those who did so successfully, went into oblivion.

    On one hand, one can say that without social sharing mechanisms, (iframes in this case) the discovery of many other sites would have been impended. On the other hand, if you are as big as washington post, you’d have more to protect. But if I’m a budding blogger hungry from exposure, I’d say please come and frame me.

    Also, for people who want to share about other sites, it is a pain to link to another site and lose exposure of their own in the process.

    For the overall good of the web, I’d say that iframe should be good as a social sharing tool. Albeit I also think that there should be some good practice guidelines. Perhaps showing ads on the referring iframe should not be encouraged. But if its for maintaining the original presence, it should be good. Do it like Google or themeforest.net where an option to close the iframe is provided. I believe this is fair. On many occasions, I do close the iframe because the content was good for more discovery.

    If content is good, the rest are lesser issues really. This is the web! Let it be.

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