On December 22nd, Gatehouse Media filed suit against a Goliath charging the New York Times Co. with a host of copyright and trademark violations for practices at Times’ owned Boston.com website and its affiliated properties. At issue was Boston.com’s aggregation and reprinting of headlines and their lead sentences (called “ledes”) from Gatehouse owned local news sites without Gatehouse’s approval. The case was due to begin today with high stakes for the Internet news industry on the line. A settlement was announced instead.
In the original complaint (PDF), Gatehouse claimed the use of its headlines and ledes without prior authorization was direct copyright infringement. Gatehouse argued the practice confused its readers and was harmful to its business. Even though the offending Boston.com websites linked back to the original Gatehouse articles, the method bypassed Gatehouse properties’ homepages and thereby prevented them from earning ad revenue they’d have otherwise generated, the suit alleged. False advertising, trademark dilution, unfair business practices and “false designation of origin” were among the eight formal charges made (PDF).
No sooner than the original case was filed, it was captured on the wires of the blogosphere and quickly challenged for being dangerous to frivolous and unfounded. Links being part of the lifeblood of the digital news industry, an attack on the feasibility of their usage, was treated as no less than an attack on the internet news media’s very existence.
Had the case gone to trial it would have been poised to task the courts with defining where the boundary line lies between the aggregation of information for search purposes (and the public good) and its outright theft. In many ways, it was almost a referendum on the very practices of web search for news. It asked, “is it legal and ‘Fair Use’ to reprint headlines? or does the aggregation steal traffic from the original site in violation of copyright law?”
In determining these kinds of questions, the “Fair Use” test of U.S. copyright law takes into account the “character of use,” “the amount and substantiality of the portion used” and the effect on the market. Here, the courts would have had to decide if Boston.com’s use interfered with Gatehouse’s ability to benefit from their original work and if the sampling of headlines and ledes were slight enough to be inconsequential.
A Gatehouse victory, had one happened, could have set precedent influencing the behavior of companies as large as Google and Yahoo. If headline sampling was declared illegal, as the sampling of a recognizable segment of a song was in 1991, news search as we know it could have been changed. Aggregation services, no matter the public benefit in discovering information, could have been blocked.
In settling, no such precedent was set (however small the risk). Moreover, potentially large legal expense was averted by both sides.
In the agreement (published in Letter Agreement form (PDF) by the New York Times), neither Gatehouse nor the New York Times Co. admitted to any wrongdoing. Instead, only a minimal change in practices was agreed upon.
Moving forward, Gatehouse will setup “technological barriers” to block the automated scraping of its RSS feeds. The NY Times Co. will agree not to bypass these digital walls. Boston.com will also remove any prior Gatehouse generated headlines and ledes from its sites.
In the future, Boston.com will continue to link to Gatehouse stories as it chooses. The future links, however, won’t use Gatehouse generated headlines or ledes.
Boston.com’s VP of product and technology Bob Kempf told reporters from his own publication that the company stands “by our position that the use of headlines and ledes is fair use, and we will continue to link appropriately.”
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