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Some confusing language in the GateHouse linking settlement

The settlement in the GateHouse/NYT Co. case has been posted, and this is one of those moments when it’s clear I am not a lawyer. We’re trying to get clarity from people smarter than us, and we’re discussing it over on Twitter. But here’s a preliminary reading of the settlement language:

GateHouse will implement one or more commercially reasonable technological solutions…intended to prevent [NYT Co.]‘ copying of any original content from GateHouse’s websites and RSS feeds…which [NYT Co.] shall not directly or indirectly circumvent.

That sounds an awful lot like NYT Co. has agreed to stop harvesting headlines and ledes from GateHouse’s sites. But if that’s the case, why does there need to be a “technological solution”? Why couldn’t NYT Co. just agree not to copy “any original content”? At first I thought this might mean that the copying could not be automated (i.e., directly pulled straight from the RSS feed), but the “shall not directly or indirectly circumvent” language would seem to imply that hand-copying headlines would be verboten too.

The agreement spells out that NYT Co. will remove GateHouse’s RSS feeds from its aggregation tool (Point 2 in the agreement), and that all the past GateHouse headlines and ledes will be removed from their archives by March (Point 3). But then, in Point 5, there’s this:

Notwithstanding the above prohibitions, nothing shall prevent either party from linking or deep-linking to the other party’s websites, provided that the terms and conditions set forth in this Letter Agreement and in the Definitive Agreement are otherwise fully complied with.

So it looks like the upshot is that the Globe can continue to link to GateHouse stories all they want, but that they can’t use any sort of automated tool or the RSS feed to do it. They’ll have to have a human being manually creating the link — and that human will have to write a new headline and summary instead of using GateHouse’s.

To put it in the language of online-journalism theory, they have to shift a bit from raw aggregation to something closer to curation.

But that’s just my first take from some confusing legal language. We’re trying to get in touch with the lawyers on both sides. How do you read it?

                                   
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Justin Ellis    April 15, 2014
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