When The Boston Globe launched a hyperlocal news site for suburban Newton in November, the paper seemed like a late adopter of an already common practice: aggregating articles, blog posts, and other content about Newton from a variety of sources across the web. No big deal.

Instead, the Globe quickly drew a lawsuit from GateHouse Media, which owns the weekly newspaper in Newton and dozens of other eastern Massachusetts towns where the Globe plans to launch similar sites under the Your Town brand. (It has already rolled them out in Waltham and Needham.) GateHouse claims that the Globe, which is owned by The New York Times Co., is committing copyright infringement by republishing the headline and first graf of many news articles and blog posts from GateHouse newspapers. There are a number of other claims in the lawsuit, including trademark infringement and unfair competition, but the upshot is that GateHouse wants the Globe to stop aggregating and linking to its content.

We’re following this case closely because it could have an impact on the myriad other news sites that engage in similar practices. And we’ve got some news and analysis about the case in another post this morning, but first, a handy video navigating the ins, outs, and implications of GateHouse v. NYT Co. Last week I interviewed David Ardia, director of the Citizen Media Law Project at Harvard’s Berkman Center, whose previous video on the Nieman Journalism Lab was a big hit. Here he explains what GateHouse is claiming in the suit, why The Times Co. is claiming fair use, what issues the court will have to weigh, and how this whole thing might have been avoided.

You should also check out the handy summary of the case — including key documents and some insightful blog posts — that Ardia and his colleagues have put together. And after the jump is a transcript of the 11-minute video above.

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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:

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We’ve been looking at the GateHouse/New York Times Co. linking dispute quite a bit recently. (See our previous posts on the case here and here.) To recap: NYT Co.’s Boston Globe is republishing the headline and first graf of some articles and blog posts by GateHouse newspapers on a suite of new hyperlocal news sites on Boston.com.

But there’s one other legal angle we haven’t looked yet looked at. GateHouse was hailed as a pioneer among newspaper companies back in 2006 when it began distributing content under a Creative Commons license. While most newspapers put up arduous hurdles to republishing their articles, GateHouse had suddenly made the content of its more than 500 publications available for reproduction at no cost — so long as the work is attributed, unaltered, and used for “non-commercial purposes.”

Now that last phrase has become part of the linking dispute. Among other claims, GateHouse argues that the Globe’s use of GateHouse text violates the terms of that CC license, because Boston.com is a commercial website.

But is it? What counts as “commercial”? The Globe doesn’t charge for access to its website. It does run advertising, but so do plenty of small blogs that few people would consider “commercial.” It’s a sticky issue that Creative Commons has not yet clarified for its users — although the organization did launch a study in September in the hopes of clarifying what exactly the organization means by “non-commercial use.”

I checked with Virginia Rutledge, special counsel for Creative Commons, who told me that results of the survey won’t be announced until “later in the year.” But this lawsuit — which is set for trial on Monday — could begin to answer the question. Check out pages 23 and 24 of the GateHouse complaint to see the company’s argument in full. They make a few other claims about how Boston.com is violating the CC license, but the non-commercial issue is clearly the trickiest.

Above is a four-minute excerpt of our interview with lawyer David Ardia in which he discusses the issue; after the jump is a transcript of his comments.

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For those who don’t follow our Twitter feed, our Zach Seward reports from the courthouse that the parties in GateHouse v. New York Times Co. (see our previous posts here, here, and here) have settled out of court. Details on the settlement to come as soon as we have them.

So for anyone worried about how a ruling might have legally limited aggregation or linking online, your worries can now officially be…put off until the next time this comes up in court.

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?

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.

It’s going to take some time to think through the implications of the settlement (PDF link) announced today between the New York Times Co. and GateHouse Media, over the issue of NYT’s Boston.com site aggregating content from local sites belonging to GateHouse, but my first instinct is that it is almost unrelentingly bad. Why? Because while the settlement is not a legally-binding precedent — the one piece of what might be called good news — it still involves the New York Times voluntarily refraining from what many would argue is perfectly defensible behaviour. As Joshua Benton notes in his post here, that could well embolden other publications to launch similar cases, on the assumption that if the NYT caved then someone else might too.

The Times tries to argue that this settlement does nothing to change the way it approaches linking to or even quoting from external sources on its websites, but that clearly isn’t the case at all. It completely changes the way the paper does that, but only when the content involves a GateHouse website. The NYT claims that it will continue to link to and quote from external sources whenever it wants, but will no longer do so with GateHouse content (under the agreement it can continue to link, but can no longer aggregate content in an automated way, and has agreed not to quote from a GateHouse site).

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I just got off the phone with Kirk Davis, the newly promoted president and chief operating officer of GateHouse Media, who gave me his interpretation of their settlement with The New York Times Co., owner of The Boston Globe. “We believe the settlement provides GateHouse with all the essential relief on the issues that caused us to take the action we did, and we’re completely satisfied,” he said.

This much seems clear: The settlement prohibits the Globe from republishing the headlines and first graf of GateHouse content as they’ve been doing on three hyperlocal news sites rolled out last year. That’s how Davis put it, and when I posed that interpretation to Abbe Serphos, a spokeswoman for The Times Co., she said, “I think that’s pretty right on.”

The Globe’s Your Town sites could link to specific articles or blog posts published by GateHouse as long it doesn’t quote the headline or lede, according to Davis. “We don’t have an issue with deep linking,” he said. I asked Davis if it would be OK for a Globe blogger to quote a few grafs from an article in one of GateHouse’s community newspapers. “I would agree that’s fine,” he said, adding with a huff, “That takes a little bit of human effort.”

There’s the key distinction: automation vs. human effort. The finer points of this settlement will be ironed out in practice, but this definitely strikes a blow to automated aggregation. (It does not, however, set a legal precedent.)

Davis also spoke about repairing his company’s “progressive reputation on the web.” GateHouse was praised in 2006 when it made all of its content available under a Creative Content license, but its lawsuit against The Times Co. has been criticized by Jeff Jarvis and others.

“In the spare time I had to follow public sentiment about this case,” Davis said, “you’d see comments like, ‘GateHouse is against linking.’ You’ve got to be kidding me. What do you think, we’re stupid? Of course we like linking and of course we support linking.”

Under the settlement, GateHouse “will implement one or more commercially reasonable technological solutions” to prevent the Globe from subscribing to and copying from GateHouse’s RSS feeds, which is how the Your Town sites have been operating thus far. Davis wouldn’t speculate about what that solution may be, but it could be something like blocking the Globe’s IP address. The Globe is also prohibited from circumventing the agreement by doing the same sort of aggregation by hand.

Finally, while I was on the phone with Davis, Lisa Williams of Placeblogger asked me to see if the settlement prohibits GateHouse or Globe content from appearing in either company’s local search results. Davis said it does not. “We have no problem with being captured by search,” he said.

As the dust settles on yesterday’s settlement in GateHouse Media v. The New York Times Co., I’ve spoken with a few more experts and key players in the case. (Here’s everything we’ve written so far, but if you’re new to the case, start with this post.) What follows are some unresolved questions and everyone’s best stabs at an answer.

Q: What are the implications of this settlement for other news aggregators?

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