Flipboard CEO’s claim: We’re not building a business “on the backs of publishers”

Updated with additional comments from Flipboard’s Mike McCue.

Flipboard is an iPad app that republishes articles your friends link to on Twitter and Facebook in pretty, magazine-like templates. It does this by violating publishers’ copyrights and hoping they’ll forgive it, Flipboard CEO Mike McCue tacitly admitted today.

“We want to build a business with publishers, not on the backs of publishers,” McCue said in response to a question I asked about whether Flipboard had the legal right to republish content in its app. McCue was on stage at the D: Dive Into Mobile conference in San Francisco.

Flipboard has changed some of its practices since its launch first raised copyright questions. It has started using website RSS feeds, a format commonly used to distribute content online, instead of scraping or copying content directly from websites. And it displays excerpts of long articles, with a link to the full article on the publisher’s website.

There are legal precedents allowing the display of short, text-only excerpts and thumbnail images from websites. But Flipboard seems to test the boundaries of those precedents in the amount of text and the size of images it uses.

McCue didn’t address the central question facing Flipboard: How can it take copyrighted text and photos, change the layout, and display them on a new device without violating publishers’ copyrights?

The answer, of course, is that it can’t. McCue said that Flipboard would stop taking content on request or if publishers placed a configuration file on their servers to block the service. As Gizmodo’s Joel Johnson pointed out in July, “Content creators do not have to specifically ask that their copyright not be violated.”

McCue’s other defense: Publishers seem to like Flipboard. Last week, it introduced Flipboard Pages, a program that allows publishers to opt into the display of longer articles in Flipboard-formatted templates. ABC News, the San Francisco Chronicle, and All Things Digital (the host of the D conference where McCue spoke), among other publishers, have joined the trial program.

It seems like a step in the right direction. But if McCue wants to get Flipboard on firm legal ground, he should flip the company’s model and make Flipboard Pages the only thing he offers.

Update: After the publication of this article, McCue and I had an engaging conversation about RSS feeds, aggregators, and copyright law. He said Flipboard spends a lot of time thinking about what’s right for authors and publishers, and he personally wouldn’t want to be involved with a company that treats their content disrespectfully. He also firmly believes what Flipboard doesn’t violate copyright law, and pointed out some technical aspects of how Flipboard displays content from RSS feeds that he believes puts it in the clear.

From our conversation, I’m convinced he’s sincere, but I’m not sure he’s right. As lawyer and copyright expert Bruce Sunstein pointed out in 2005, RSS feeds are copyrighted just like any published material, and simply because it’s now easier to display the material in new ways — and publishers are accommodating those uses — doesn’t mean those ways don’t violate publishers’ copyright.

McCue and I ended the conversation agreeing that there should be better ways to clarify rights, most likely through Creative Commons licensing, which uses copyright law to provide explicit permission for various reuses of content. Already, a handful of publishers like Gawker Media are using Creative Commons licenses for this reason. And McCue also said Flipboard is thinking about ways to give publishers more control over how their content is displayed in its app.

What Flipboard is doing is definitely pushing the boundaries. It would be all to the good if it also ends up redefining them in ways that give the media and technology worlds more clarity about copyright.