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A conversation with David Rose, little magazine veteran and publisher of Lapham’s Quarterly
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Jan. 22, 2009, 7:07 a.m.

Howard Owens: “They would probably win on that one”

We’ve all heard, at one time or another, that we shouldn’t write anything in an email we wouldn’t feel comfortable being discussed in court. It appears some people at the newspaper chain GateHouse are seeing the truth of that wisdom.

As you know, GateHouse is suing to prevent The Boston Globe from linking to stories produced by GateHouse newspapers by reproducing the stories’ headlines and first graf. (For background on the case, see our earlier post, which outlines some of the legal arguments of both sides and details what’s at stake. The case is set for trial on Monday.)

But in a court filing on Friday, the Globe’s owner, The New York Times Co., cited emails from a top GateHouse official that seem to undercut his company’s argument that Globe-style aggregation constitutes copyright and trademark infringement. The official is Howard Owens, GateHouse’s director of digital publishing and a respected thinker on online journalism issues.

Here’s what the emails in the NYT Co. filing tell us:

Last fall, some employees at GateHouse complained that a social-networking site for residents of Arlington, Mass., called Famboogle was reproducing headlines, images, and portions of articles from The Arlington Advocate, a weekly newspaper published by GateHouse.

In an email on October 2, 2008, Sarah Corbitt, the company’s director of online content, wondered if such use was a violation of the Creative Commons license under which GateHouse publishes its content. That license permits only non-commercial use.

Responding 15 minutes later, Owens wrote (the email is on page 19 of this PDF):

Also note that headline, a few graphs and a link back to our site isn’t a Creative Commons issue, but a fair use issue, and they would probably win on that one.

Compare what we do with thebatavian.com.

American courts often allow the reproduction of portions of copyrighted material under the fair-use doctrine if the material is seen as newsworthy. And Owens, just a few months earlier, had launched The Batavian, a widely hailed online-only news site competing with an upstate New York newspaper that, thus far, hasn’t embraced the web.

The situation discussed in Owens’ email doesn’t directly involve the Globe, but NYT Co.’s attorneys at Goodwin Procter seized on the email in its filing on Friday. “GateHouse’s own executives believe the basic linking practices at issue here are not only unremarkable but perfectly permissible,” the company argued:

The practice of linking to another content-provider’s content on a website is the backbone of contemporary online news aggregation, and is a practice used by The Boston Globe, GateHouse, and numerous other popular online news outlets, such as Google and Yahoo!. The question raised in this case is whether a party commits copyright and trademark infringement when it engages in the common and widespread practice of posting linked headlines and story identifying ledes on its website that are the original content of another.

Obviously, The Times Co. thinks that “common and widespread practice” is perfectly OK. But in a strategic move, the company filed a countersuit claiming that GateHouse has engaged in similar copyright infringement with The Batavian in Batavia, New York. NYT Co. pointed to a slew of New York Times and Boston Globe headlines that have been reproduced on The Batavian’s site — though the examples cited did not include any text from the body of the article as the Globe’s “Your Town” sites do with GateHouse’s content.

I tried to get in touch with both GateHouse and Owens yesterday and didn’t hear back from either. Owens may be unable to comment, since the matter is in litigation; he doesn’t appear to have responded to several similar requests in recent weeks on Twitter. He’s in a tough situation. A GateHouse press release on Friday didn’t address the Owens email.

When GateHouse filed its original complaint in November, the company was roundly criticized across the blogosphere for pushing back against the culture of linking that has come to define online journalism. Most echoed what Owens seemed to say, that a headline and a graf or two wasn’t theft.

But media blogger Dan Kennedy has made some good arguments supporting GateHouse. (Kennedy wrote yesterday that the two companies should settle to avoid a court decision that might have broader implications for news coverage on the Internet.)

The NYT Co. filing also pointed to search results on GateHouse’s Wicked Local sites that included “headlines and ledes from other news providers,” including the Globe. GateHouse appears to have realized that the search results could be an issue in this battle. In an email on November 12, Jonathan Shubow, the interactive operations manager for GateHouse New England, wrote to someone at Planet Discover, the company that provides Wicked Local’s search results. The email read, “Can you please discontinue to aggregate outside news content for us and kill it off asap??”

POSTED     Jan. 22, 2009, 7:07 a.m.
PART OF A SERIES     GateHouse v. NYT Co.
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