BuzzFeed may be the most illegal site you’ve ever visited. I say may be because I don’t know your full browsing history–I just work for a technology company, I’m no NSA Analyst. But given that 40 million people visit the site a month, odds are likely that you’ve been to the site, seen an article shared from the site in your social media feeds, or possibly shared an article from the wildly popular site. A recently filed lawsuit threatens the BuzzFeed business model and raises the question of whether BuzzFeed is the worst copyright infringer in social media today–potentially outstripping the issues that have been raised for Pinterest.
The lawsuit was filed by photographer Kai Eiselein, a 30+ year photographer who has worked as a photojournalist and other photography positions. His photo, Contact, was copied by BuzzFeed for one of their lists The 30 Funniest Header Faces (which, if you visit, is now the 29 Funniest Header Faces…more on that later). The lawsuit points out that BuzzFeed copied the image despite the photograph being protected on Flickr, where it was originally posted. Typically, if you want to save an image while browsing a website you can right-click on an image and choose an option to save the image. On Flickr, this functionality can be disabled–if you right-click on Eiselein’s image then a copyright notice pops up telling you that all rights are reserved. The lawsuit also points out that BuzzFeed intentionally ignores not just pop-up notices like Flickr but also posts several images that contain watermarks (several are still present in the list). Eiselein complained to BuzzFeed and they later removed the image and changed the name of the list but this wasn’t before dozens of other sites had copied the list.
Eiselein has sued not only for direct infringement by BuzzFeed but also for contributory infringement–knowing inducing another person to violate copyright protections. This is an interesting angle on an otherwise typical copyright infringement lawsuit since BuzzFeed’s entire business model is built upon the idea of creating stories that will be shared by readers. For BuzzFeed to succeed, it needs readers to copy and share its information. This triggers a tricky area of law that the Supreme Court has weighed in on two significant cases.
In 1984, the Supreme Court decided Sony v. Universal Studios (link is to the syllabus of the case rather than the full text, because I’m just that nice). Sony was accused of being liable for copyright infringement for uses of its VCRs (called VTRs by the Court back then, how quaint). This led the Supreme Court to set a rule that distributing a product that was capable of substantial non-infringing use would not make the equipment manufacturer liable if users also used that device for infringement. Since time-shifting (fancy term for recording a show that you watch later) was considered non-infringing then Sony was not liable for merely distributing VCRs. This rule was used for decades by courts over newer technologies that might enable other intellectual property infringement but also had substantial non-infringing uses.
By the time the 21st century landed, technology had gone through significant changes and the Court was again asked to consider if a technology provider could be liable for infringement by its users in the 2005 MGM v. Grokster case (again, syllabus, you’re welcome). Grokster was one of the early peer-to-peer file sharing services and evidence showed that they distributed their software with the suggestion that users distribute copyrighted music and movies via their tool. The Court said that the Sony rule of protecting a technology that has substantial non-infringing uses does not require the law to ignore the intentional infringement and inducement by a technology provider. Following this unanimous ruling, Grokster ceased operations within months.
The issue here is whether BuzzFeed (and similar websites) is closer to Grokster or a VCR. Several factors seem to go against BuzzFeed. First is their intentional ignoring of copyright protections, whether watermark or popup notices informing users that the photographer doesn’t want their image placed everywhere possible. Second is that the safest defense from these claims, the Safe Harbor provisions of the Digital Millennium Copyright Act, don’t apply because this was not an unknown BuzzFeed user posting the infringing content but BuzzFeed itself in the form of one of their paid staff writers. Third is BuzzFeed’s founder.
Jonah Peretti already had a history with social media and viral content before founding BuzzFeed. Arguably his most well-known viral content encounter was when he tried to order a pair of customized Nike shoes with the word SWEATSHOP stitched in the side. The resulting email exchange with Nike went viral before going viral was even a term. Peretti’s experiences with viral content and research at the famous MIT Media Lab influenced his outlook on media. He has said that he is more concerned with information being widely distributed rather than it being high-quality: “The biggest misconception people have is that quality is all that matters. The truth is that quality helps, but there’s a ton of high-quality things that don’t go anywhere.” This tone from the top may influence BuzzFeed’s business practices to their detriment.
Peretti also believes that BuzzFeed’s articles are protected by Fair Use. That’s a very difficult case to make. As any copyright lawyer will tell you, the moment that you’re hanging your hat on Fair Use, a notoriously fuzzy and difficult defense, you’re signing up to a lot of legal headaches. In this case, Peretti believes that BuzzFeed articles are transformative and so they are protected. That’s not exactly a sound legal theory for two huge reasons.
First, Fair Use is determined by analyzing four factors. Yes, the first factor (purpose and character of the work) does look at whether the resulting work is transformative, but Fair Use requires analysis of all four factors. It isn’t a legal sudden death where the first time you win a factor then it’s game over in your favor. BuzzFeed would need to win the analysis on the whole, and given then other three factors I think it’s highly unlikely to do so.
Second, I’m not so sure BuzzFeed is transforming anything. Copying a bunch of photos into a list does require some creative effort, but at best it is curation and not original authorship. I’m not saying it’s easy, but it isn’t transformative to the extent the Fair Use exemption will protect its efforts.
To this end, BuzzFeed may be worse than Pinterest when it comes to copyright–they are infringing rights directly and ignoring intentional attempts by authors to prevent copying. Whether this lawsuit is successful in changing BuzzFeed’s (or similar sites’) practices remains to be seen–a lot can happen in a lawsuit. But rest assured that even if BuzzFeed loses the case I’m sure we’ll see 27 puppies reacting to the verdict within minutes.