Aggregator vs. Aggregator

When an aggregator goes from defendant to plaintiff...

Distractify LogoAggregation and copyright is a conflict that goes back for well more than a decade. On just this site we’ve looked at ethical aggregation, aggregation of news media and RSS scraping just to name a few.

In that time a lot of things have changed in aggregation. What was a blogging phenomenon has now shifted more to social media. What that, what was a fight over RSS scraping shifted into a battle over headlines and images.

But what has remained consistent over the 12 years I’ve been following this conflict is that the battle lines have been clearly drawn between aggregators and the creators they were pulling from.

However, that recently changed as news has come out about two aggregators going to war over alleged copyright infringement of aggregated content.

The lawsuit raises some serious questions about copyright and originality in the digital age as well as highlights some of the challenges that modern day aggregators face.

After all, how do you protect your hard work when so little of it is truly original?

The Basics of the Lawsuit

Aggregator vs. Aggregator ImageDistractify is a name that most Facebook users are likely familiar with. Between their sponsored posts and widespread appeal, they’ve earned a reputation for upbeat clickbait stories on everything from unusual Airbnbs to a popular story about a teen using a playlist to breakup with her boyfriend.

However, in recent months, Distractify has taken umbrage to one of its competitors, 22 Words. So much so that, in late June, Distractify filed a lawsuit against them and their parent company, Brainjolt, for copyright infringement.

According to the lawsuit, 22 Words has made a habit of taking stories published by Distractify and releasing their own version of it, usually with the headline slightly modified.

A recent article by the New York Times highlighted some of the examples Distractify provided. For example, in one case Distractify wrote:

Ellen DeGeneres Used ‘Finding Dory’ To Criticize Trump’s Immigration Ban

Only to have 22 Words later write an article about the same clip with the headline.

Ellen DeGeneres Used ‘Finding Dory’ Plot To Slam President Trump’s Immigration Ban

Obviously the headlines are different and neither side holds the rights to the original clip. In all of the cases cited, both sides are focused on the original content while adding only small passages of context and opinion.

This raises a simple but serious question: What is Distractify claiming copyright over and how was it infringed?

What Can Copyright Protect

US Copyright Office SealWhen it comes to what copyright can protect, the U.S. Copyright Office explains it plainly. Copyright protects “original works of authorship” that are fixed into a tangible form expression.

The latter part of the definition isn’t a problem for Distractify as saving anything to a server counts as fixing it to a tangible medium. However, it’s the first part that presents a serious challenge. What “original work of authorship” is there in Distractify’s work?

Distractify’s posts typically come with a few paragraphs of introductory text though the bulk of the posts (at least the ones I looked at) feature embedded or copied content with either titles or or short bits of commentary.

Though the introductory text could qualify for copyright protection, in the same document above, the U.S. Copyright Office makes it clear that titles, names, short phrases nor slogans don’t qualify for copyright protection.

Likewise, ideas also can’t be copyright protected so Distractify can’t claim infringement over the idea of a certain post. If there’s enough requisite creativity in assembling a top ten list it can be copyrighted, but only if the list is copied directly.

In short, while it does seem pretty clear that 22 Words is creating articles based on topics on Distractify, it also appears that the site is being careful to limit its reuse to the idea and to the aggregated content, two things Distractify can’t claim copyright on.

This has led many to wonder if the real issue isn’t copyright, but attribution. However, that raises its own set of questions.

The Issue of Attribution

As the New York Times noted, both Distractify and 22 Words have pulled from the other and included attribution, usually in the form of a “hat tip”. However, that wasn’t true in the stories cited in the lawsuit.

But while attribution is certainly a great thing from an ethical standpoint, it doesn’t have a great deal of impact from a legal one. Though many plagiarisms are copyright infringements that has more to do with the copying inherent in plagiarism rather than the act of attribution. Most infringing plagiarisms would be just as infringing with attribution.

While it’s easy to see why a lack of attribution might upset Distractify, it really doesn’t have much bearing on the law. If the uncited uses are infringing, most likely the cited ones are too.

So, while the goal of the lawsuit may be to teach a lesson about attribution, citation probably won’t play a big part in the case itself. However, it’s very possible that Distractify’s somewhat checkered past may come up.

Fighting with Unclean Hands

To many, the greatest irony in the lawsuit is that Distractify would sue anyone for copyright infringement.

The company has a checkered past when it comes to its own relationship with copyright, having been sued at least twice for its use of images without permission. They’ve also faced criticism for copied headlines as well.

Distractify, to many, is a company that lives and works at the edge of ethical boundaries. It has built a viral empire off the work of others and, at times, that relationship between creator and aggregator has been questioned.

But what makes the lawsuit especially interesting is that Distractify is suing 22 Words for doing much the same thing others accuse it of doing: Taking their ideas and repurposing them into viral posts.

If Distractify were to win, there’s a real possibility it could create a standard that would help other creators go after it. For example, if Distractify won a ruling that lightly rewritten headlines were copyright infringement, that could empower others authors, including the one linked above, to go after them.

As Daniel Nazier, a staff attorney for the Electronic Frontier Foundation, said in the New York Times article, “How is this infringement if their original articles aren’t infringement?”

It’s a tough question and one that Distractify will have to answer if it hopes to move this lawsuit forward.

Bottom Line

The battles between creators and aggregators are almost as old as the internet. However, this battle between aggregators presents something new, both legally and ethically.

What this clearly represents is a growth in the popularity and the strength of aggregators. At least Distractify sees itself as having a creative work that it must protect from its competitors. Whether that’s true or not, the courts will decide.

Still, this is a sharp contrast from 12 years ago, when aggregators were scraping RSS feeds and trying to defend the behavior as being authorized. Aggregators have gone from feeling besieged by creators to, at least in some cases, feeling like creators themselves.

While I won’t argue that aggregators don’t provide value, the question is simple: Does any of that value enjoy copyright protection.

Right now, it’s hard to see what copyright protection Distractify might have. However, if it’s work is protectable under copyright, it might pose a bigger problem for the aggregators down the road.

Most likely though, this lawsuit will be quickly resolved. That’s not necessarily a prediction, but rather, a simple truth about how lawsuits go. Most are resolved without the courts truly weighing in, something that’s likely here.

Still, this lawsuit does represent a turning point for the internet and, quite possibly, for copyright history. Aggregators are moving from the defendant’s chair to the plaintiff’s chain in copyright disputes and there’s no way that isn’t a notable event.

If the future of the internet truly is aggregation, it will likely be the first of many lawsuits. That alone makes this one worth watching, especially consider the impact it could have on aggregators in general.

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