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Jan. 22, 2009, 7 a.m.

Ardia on GateHouse v. NYT Co.: What’s at stake in the linking case

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.

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