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

Because the case was settled, it does not set a legal precedent, but as Josh discussed earlier, GateHouse v. NYT Co. will undoubtedly weigh on future legal disputes over linking and news aggregation on the web. David Ardia, director of Citizen Media Law Project, said the case could have what he called “persuasive power” for both media companies and courts. “Other news organizations have paid attention to this, and depending on which side they’re on in a future dispute, will look to this agreement for guidance,” he said. Litigants, for example, could argue that because NYT Co. settled this case, its arguments did not have merit.

In addition, courts are likely to look at this case as a yardstick for similar disputes, Ardia said. Judges faced with intellectual-property cases like this often consider what the “common practice” is. And this settlement, as it plays out, could begin to establish such a practice for the broader Internet community.

However, Bob Kempf, vice president of product development at the Globe’s Boston.com, pushed back against any broader reading of the case in a phone interview late yesterday afternoon. “All this agreement really does is reaffirm our longstanding practice of respecting technological barriers that are set up by websites that want to limit our ability to aggregate content from them,” he said. He called that an ethical issue, not a legal one. (Kempf, for what it’s worth, was vice president of interactive media for GateHouse until joining the NYT Co. in 2006. Thanks to commenter Bill Simpson for pointing that out.)

Q: Why was GateHouse’s argument stronger than it may have seemed?

Boston media blogger Dan Kennedy was way out in front of everyone else in recognizing the strength of GateHouse’s arguments in this case. (He also explained early on why a settlement would be preferable for both sides.) When we spoke yesterday, he argued that the Globe’s Your Town sites were engaging in a style and extent of aggregation “that pushed farther than anything I’ve ever seen on the web.”

Kennedy pointed me to an expert opinion that GateHouse filed in the case, written by UCLA law professor Douglas Lichtman. (GateHouse paid him $750 an hour to produce the report, though experts are commonly paid hefty fees in legal cases.) Much of Lichtman’s analysis may be moot as this point, but he makes a painstaking yet strong case for why the Globe’s aggregation isn’t covered by the fair-use doctrine. He says there are two crucial considerations:

— “the degree to which the practice at issue seems likely to undermine the incentives copyright law endeavors to create”; and

— “the degree to which the unauthorized copying makes possible some output that is particularly new, worthwhile, or hard to achieve.”

Lichtman argues that the Your Town sites have been undermining GateHouse’s incentive to produce unique content by copying it in a way that isn’t “transformative.” If you’re a skeptic of GateHouse’s arguments — I certainly have been — then give the report a read. (And here’s a response to it that NYT Co. filed on Friday.)

Q: What was NYT Co.’s legal strategy in settling this case?

That being said, NYT Co. also had strong arguments that many observers of the case thought were likely to prevail. As Ardia put it, “It’s not like they had a weak case.” So why settle? Ardia noted NYT Co. could have had several factors in mind that well go beyond the simple merits of the case. He explained:

I think The Times has basically put their hands up and said, this fight isn’t worth it because we aren’t going to continue to make use of GateHouse content. Perhaps it isn’t that valuable to them. Clearly if they saw some real value in this information, I imagine they wouldn’t have agreed to this settlement on the eve of the trial.

Another factor is ironic but makes a lot of sense. Ardia said:

It could be that The Times is also thinking down the road for themselves, of another site attempting to use New York Times content similar to the way they used GateHouse content. And they want to be able to use this strategy themselves.

I posed both points to Kempf, who said, understandably, “I wouldn’t want to speculate on legal strategy.”

Q: Will this settlement kill the Globe’s hyperlocal news aggregation strategy?

Not at all, Kempf told me. “GateHouse content is not central to our mission,” he said, and the Your Town sites will continue to aggregate as they have been from other local news sources and bloggers. He also noted that the sites include wikis and event calendars that don’t depend at all on GateHouse publications. “We remain very, very enthusiastic about the initiative,” Kempf said, and they still plan to roll out more Your Town sites in other Massachusetts communities.

Q: What might this all really be about?

The unmentioned Exhibits A and B in this case were the sloping stock charts of both troubled media companies. GateHouse traded above $20 a share less than two years ago, but it has been in free fall ever since, burdened by more than a billion dollars in debt and a passel of community newspapers with sagging ad revenues. The company was kicked off the New York Stock Exchange in July and now trades on the inglorious penny-stock market known — ominously, in an industry beset by layoffs — as Pink Sheets. When news of the settlement came out yesterday morning, GateHouse was trading at five cents — or the change I declined after buying a coffee and the Globe outside the courthouse.

The New York Times Co. only looks good when preceded by a graf like that. It’s trading below $6 these days, having fallen from a high of $52.20 in 2002. Amid a cacophony of death knells, Moody’s on Friday downgraded the company’s debt to “junk” status and said it expected “ongoing deterioration in newspaper advertising revenues.” At the Globe, which is in far worse shape than the flagship Times, a new round of layoffs announced this month will trim the newsroom by 12 percent. And though NYT Co. is constantly rumored to be seeking a buyer for a Globe, it’s not clear who that buyer would be.

So both companies are in dire straits, which might help explain both why this went so quickly into litigation (no room to give an inch) and why it did not go to trial (ditto). Or as Steve Yelvington put it on Twitter, “looks like both parties agreed to withdraw to prewar boundaries.”

Q: What’s next?

The document released yesterday is actually a “letter agreement,” not the formal terms of the settlement. Those are likely to be hashed out in the coming weeks, but yesterday’s letter states the “definitive agreement” should be complete by Friday and will be made public at some undefined point thereafter.

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.

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).

This kind of dual status for linking and quoting is going to be virtually impossible to defend, I would argue. What possible rationale could the NYT create for taking one approach to GateHouse content and another to content from everywhere else? The only obvious reason is that one sued the company and the others haven’t. That’s an invitation to further court cases.

My biggest fear (and I don’t think I’m alone) is that every settlement like this one weakens the defences around the entire structure of the Web, in which linking and quoting — in some limited, representative way — is a fundamental principle. Not only that, but doing so is a right that is enshrined in the U.S. copyright principle of “fair use.” It’s true that there are all sorts of limits placed by the courts on that principle (although the simple fact that a site is run by a commercial entity is not a de facto exclusion from fair-use protection), but I would argue that it is still a vitally important principle, and one we shouldn’t be too quick to give up.

I recognize that the NYT has corporate responsibilities to consider, and that it probably didn’t want to engage in a protracted legal battle over this issue — particularly during tough economic times — but I think the agreement it has entered into is a major step backward for media and the Web.

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.

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?

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.

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.

David Ardia:

So one of the complicating factors in this is that GateHouse provides content through its sites through Creative Commons, as a lot of websites do, under a Creative Commons license. It basically lets other users make use of that content, republish it, as long as they meet the requirements of the license. In this case, GateHouse’s requirements were that the use be non-commercial and that there be proper attribution to the source of the information. So in breaking down those two requirements, they’re claiming that Boston.com’s use is commercial. The sites have advertising, there’s profit to be made there by Boston.com in reusing this information, and according to GateHouse, that’s a violation of the licensing terms.

With regard to the attribution requirement, I don’t think there’s any question that Boston.com is properly attributing the information back to the GateHouse and to the Wicked Local sites. What’s interesting about the lawsuit is that the basis for their trademark claim is that that attribution could potentially confuse readers. So The New York Times or Boston.com is in the position of having to comply with the attribution requirements of the license, but in doing so it has to designate the source of that, and it has to say it’s from a Wicked Local site or from another GateHouse Media property. How can it do that without using the name? And if it uses the name, under GateHouse’s theory of liability in this lawsuit, it’s engaging in trademark infringement. And that puts the Boston.com editors in a difficult position because they have to comply with the attribution requirement, but to do so it could raise a trademark issue, at least according to GateHouse.

[...]

So one of the complicating factors in this case is that the Creative Commons license that says non-commercial use is acceptable doesn’t define what “non-commercial” means. And, in fact, Creative Commons just did a survey, starting last month, looking at how its users interpret the term “non-commercial.” We don’t know the results of that survey yet, but my guess is that there’s going to be a broad range of opinion as to what it means to be commercial and what it means to be non-commercial.

If you think about it in the simplest terms, commercial for many people would imply, “You pay me, and I will give you the content.” So that would be a subscription model. That’s the way books are sold, typically. Newspapers don’t operate that way online. Their content is provided for free. There’s no direct commercial transaction between the user and the provider of content. Instead, their money is made from advertisers who run their content alongside the free content in the hope that eyeballs will stray over and see that advertising. That’s a little different, and for many many websites that would not consider themselves commercial nevertheless run advertising. They may run advertising through a Google network, through Google Adwords. Or perhaps they have an Amazon referral. Many bloggers have that. And, if all of those platforms were considered commercial, simply because there’s some advertising associated with the content, that would preclude a great many sites that are currently using Creative Commons-licensed content as non-commercial entities, would put them into the commercial category. So we have to be careful when watching this case, that there isn’t a ruling here that drastically changes the way “commercial” works in the content of Creative Commons licenses.

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??”

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.

David Ardia:

Ardia: Back in December 2008, GateHouse filed an eight-count complaint against New York Times Co., the operator of Boston.com and owner of The Boston Globe, raising primarily copyright and trademark claims, relative to Boston.com’s use of GateHouse’s content on many of its local sites — they [GateHouse] operate under the Wicked Local website brand.

And as a result of those claims, they have also added a number of state law claims — unfair competition, false advertising — essentially claiming that what Boston.com is doing is unfairly taking their content, by using headlines and a few sentences from the ledes, and then falsely portraying it as their own, and falsely portraying that GateHouse has endorsed their use by including the Wicked Local name or the name of some of the other GateHouse properties, and including a link back to those websites when they published the headlines and ledes. So as a basis of that, they have filed an eight-count complaint.

Zach Seward, Nieman Journalism Lab: It seems a little bit like a typical news aggregation site. So it’s possible that this case could have implications for other sites that do similar kinds of aggregation?

A: It does. In some ways this case raises set of facts that are very similar to what we see in a lot of aggregation sites. But in other ways the case is somewhat unique, in that Boston.com and GateHouse are both aggregators and creators of content. So the Boston.com sites include Boston Globe content, content that they create themselves. It also includes blog content that’s local to the communities they are serving, as well as GateHouse and any other content they can get their hands on, [that] they think are relevant to members of those communities.

And as you said, Zach, a lot of sites do that. There are plenty of aggregation sites that pull in headlines, pull in snippets — you could say, that’s what Google News does. And so whatever the result of this lawsuit is is going to have implications for many many sites across the internet. And in some ways, the nature of GateHouse’s challenge to New York Times and to Boston.com goes to the very heart of how we link and share information online and aggregate information. And in some ways it goes at the very heart of what we are seeing in the media ecosystem.

Q: Could you go through the copyright claim and the trademark claim that GateHouse makes in the case?

A: Sure. So the copyright claim is a claim that the use of their headlines and several sentences from their lede is copyright infringement. The New York Times’ response to that would be: It’s fair use. We’re not using all of it; we’re only taking a small snippet of it. We are using it as part of news reporting, commentary — which is recognized use that has given great credence under fair use by the courts. And so even though we are technically using this copyrighted material, we are doing so under fair use and we are protected by that doctrine.

The trademark claims relate to the use of links back, or attribution back to GateHouse websites where the content originates. And GateHouse’s position is that this is trademark infringement. They have a trademark in the names of the Wicked Local sites and they haven’t sanctioned the use by Boston.com to use those names, that that maybe confusing for readers of the site, who could possibly believe that they have granted their permission for Boston.com to use this, or they have somehow endorsed Boston.com’s use. Both of those things they’re very concerned about because it impacts their identity and their brand. And they want them to stop doing it.

Then there’s also some claims, as I mentioned earlier, about some unfair competition aspects of this. Both of these companies operate in the same markets. They tend to provide similar services. For example, here in Newton, Massachusetts, they both have locally oriented websites that compete for readers. So underlying this is a really complicated dispute between two major competitors looking to find a place in local news in those communities.

[...]

First off, you can understand what drove GateHouse to do with this. As many companies in the media business are experiencing difficult financial times, they’re looking online as a way to reach out, to get their content to readers and to hopefully make money through advertising. And they do that by getting people to come to their sites. And they’ve made a stake to do this in these local communities — to be the place where someone whose based in Newton, Massachusetts, who’s interested in news and information about their community, can come and get it from all different kinds of sources. Well, that’s exactly the plan of Boston.com as well — to come to those same communities and essentially provide the same services.

So it’s unlikely both companies are going to be successful in the same markets. So GateHouse is faced with this proposition of either stopping their competitor, or perhaps trying to find some way to differentiate themselves. And there are a couple of ways, I think, they could have handled this short of filing a lawsuit.

The first is to think about the nature of headlines in the first place. You could use the headline as a teaser. One of the arguments in this case is that a user who goes to the Boston.com site sees a headline: “Big Fire Downtown.” That may be all the information that they need. There is no need for them to click on the link and to go and read the story. But if headlines were written in such a way that they were teasers, so all the information wasn’t conveyed in the headline — if it would’ve just simply made someone interested in clicking on the headline to get that additional information — then GateHouse would welcome the fact that Boston.com was using their headlines. In fact, they would enjoy that everyone, every site, out there was making use of their headlines because that’s more eyeballs, more people who are going to be enticed to click on the link to get to the content to read on GateHouse’s site.

So one way that GateHouse could address this is to think about how headlines are used. Another way to think about it is by thinking about what value they can add. If you’re just talking about breaking events, that kind of information is a relative commodity. The fact that there was a fire downtown — once I know it, I don’t need to get it from another source. But where an organization like GateHouse and where many news organizations can really add value is in analysis and perspective. Something that goes beyond just simply the factual nature of what’s being recorded and starts to provide a deeper understanding. And in that cease, you can’t capture that in a headline. You can’t capture that in the first three sentences of a lede. And so there is very little danger there that someone is going to see what’s on Boston.com or any other site as a substitute. They’re going to know they need to go all the way through, read the entire article, or at least read some of the article, on the GateHouse media website in order to get that perspective.

So those are ways that GateHouse can differentiate itself from Boston.com. It can add value to its content and it can bring users in there. And in fact, if it takes that approach, then seen in the context of that kind of competitive nature of producing local news and information, it’s of great benefit to them that other sites aggregate their content and make the headlines available.

So what we have to be concerned about in a case like this is that a court comes down and comes down with a decision that locks us out from those kinds of innovative approaches to providing user information. If the court were to say — let’s say that the court decides in this case you can’t use headlines at all. I think that is highly unlikely, but let’s say the court says that. Where does that leave GateHouse if two years from now it comes up with this deeper analysis on these topics, and it’s trying to get other sites to provide headlines back to it? Those other sites could be at great risk of copyright infringement and we may see limitations placed on the ability to aggregate content across the Internet if sites are precluded from using headlines, which again I think is very unlikely. But if you take the arguments in this case to their logical conclusion, you reach a point where you start to see some real constraints on the media ecosystem that’s developed.

[...]

The New York Times is asserting here that their use is fair use, which basically says: Yes, we may be infringing under copyright, but we are entitled to do so, because we are using it in such a way that ultimately is a benefit for society. And when courts make that analysis, it is very fact specific. You can’t in a case like this for example say: Every single use of the first three sentences of a lede and a headline is not entitled to fair use.

Most likely the court’s going to have to look at these articles that GateHouse is claiming are being infringed individually, and try to make an assessment of whether or not, for example, Boston.com’s use serves as a substitute for the original content, whether Boston.com has taken too much — the amount that’s used relative to the whole is an important factor that courts look at. They also look at what the effect is on the market.

And in this case it certainly could have an effect on the market if the user never clicks through. So GateHouse member gets a pageview, they don’t get a clickthrough, they can’t realize advertising revenue. But some of those readers who read it on Boston.com are in fact going to clickthrough. And it maybe the case that more users in the end go to a GateHouse website because Boston.com has provided the headlines and ledes than would have if they were to access that information on their own through Google searches and other mechanisms.

So the court will want to look at what the total impact would be on the market for this work from the GateHouse site directly. And it could be the case that the court crafts a decision that sort of takes a middle ground, and looks at some of these as taking too much and other instances where Boston.com has used the information and the court says you haven’t taken too much, because in the end it isn’t serving as a substitution, it isn’t having an impact on the market.

So in making that analysis, it is very fact specific. It is very much dependent on the amount that’s used, what the likelihood of substitution is — and that’s quite challenging for a court to do that.