Will media companies use GateHouse settlement as a negotiating hammer?
Zach’s on the phone with the lawyers right now, but I wanted to add one quick point. Some people, like Dan Kennedy, had hoped for a GateHouse/NYT Co. settlement because they feared what legal precedent would be set by a court dictating what kinds of linking is okay online. And that has been avoided.
But a different kind of precedent has been set today. It’s a negotiating precedent — and it’ll be pointed to every time there’s a dispute of this sort in the future.
If GateHouse — a company whose stock price is at five cents — can get the most prestigious newspaper company in America to agree to change its behavior, what’s to stop other companies from following its lead? And, perhaps most interestingly, will Goliaths start using this strategy against Davids, rather than the other way around?
Wouldn’t this same strategy appeal to, say, a major metro newspaper mad about a local blogger who links to a few of its stories every day, quoting headlines or ledes along the way? The GateHouse settlement isn’t tied to the frequency of the linking, and it makes no exemptions for commentary or other such bloggy behavior — the NYT Co., as I read it, isn’t allowed to quote from GateHouse stories at all under the new system. (The agreement creates a system “intended to prevent Defendants’ copying of any original content from GateHouse’s websites and RSS feeds” and prohibits any direct or indirect circumvention of that system. Linking is okay, but quoting is not.)
(Update: Zach spoke with a GateHouse exec who said that it would be okay for a Globe blogger to quote a few grafs from a story within the context of human-written post. I don’t see that exception anywhere in the settlement, but nota bene.)
I imagine there are a number of media companies out there who will see this settlement as a tool to go after people who believe their behavior falls under fair use. Those companies will be able to say: “The New York Times Co. tried that same argument, and they had to back down. And they had better lawyers than you do.” It’ll be really interesting to see how far this deal echoes around the blogging world.
Regarding the apparent banning of any and all quotations: Actually, the agreement doesn’t explicitly discuss quoting (the word is not in there), it just governs copying. So I think the convoluted structure in Section 1 (technical discussions about Solutions; notification that the Solutions don’t work; NYT then has to abide by whatever the Solutions were intended to prevent) is a way of preventing the existing copying practice, while preserving fair use quoting, such as in news story, column, editorial or blog post. I’m not a lawyer, either, but I think copying and quoting need to be read in the context of the Copyright Act here.
Why is the price of Gatehouse stock important enough to even mention?
Headlines and the first paragraph are the heart of a news story, scraping them in an automated fashion to create pages without anything else on them is NOT fair use.
I only wish this had gone all the way to a decision but you can’t blame Gatehouse for settling, they got what they wanted.
Stephen, I mention the stock price only to show that GateHouse is a smaller player than the NYT and lots of other institutions. If a relatively small company like GateHouse can get the NYT to change, then a relatively bigger media player might be even more likely to pursue similar action against other web sites.