The New York Times Co. has responded to the GateHouse lawsuit. Boston Globe reporter Todd Wallack quotes Times spokeswoman Catherine Mathis:
Far from being illegal or improper, this practice of linking to sites is common and is familiar to anyone who has searched the Web. It is fair and benefits both Web users and the originating site.
This is going to be fascinating to watch.
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I tend to agree with Gate House on this, but to me the whole foundation of their lawsuit is an admission that a newspaper’s web presence is a costly evil, and if we’re going to do all the work and spend the money, then damnit we don’t anyone else capitlaizing in any way, shape or form. If it was only about page views, I suspect they wouldn’t have a problem with it.
If this lawsuit succeeds, can you imagine what this might do to the well-established blogger practice of linking to news stories? If you have an ad on your site (does Dan’s ad for his own book count?), you can’t link? What ever happened to “fair use”?Chaos!
Steve: Fair use speaks to the “substantiality” of what is taken. In some cases, the headline and the first sentence might be enough. This is not a simple case.
I wish the competition issue of the Boston.com/Gatehouse situation could be separated from the commercial benefit issue.
How can a headline and a single sentence not be fair use, unless the entire article consists only of that one sentence?I’m constantly linking to and quoting from news articles over on Davis Square LiveJournal. We’re not a commercial site (no paid advertising) so I feel confident that I can continue, but it seems that GateHouse’s lawyer has no clue about the purpose of hypertext.
Ron: If it’s the most useful and marketable part, then the headline and a sentence may very well not be fair use. I’m not a lawyer, but I teach this stuff. Trust me, hypertext is not mentioned in the four-part doctrine of fair use.
But the only purpose of a headline and lead sentence is to encourage the reader to continue reading. To do that, the reader must click the link.Now if Boston.com were copying whole stories verbatim, or even substantial fractions of them, that would be a different matter.
This case most likely will be horribly expensive for GateHouse to pursue. There will be piles and piles of twaddle and if us bloggers can’t figure it out how will a judge or a jury. I think we remember the extraordinary complexity of the Microsoft case in separating the browser from Windows and this case can be just as complicated. The lawyers will muddy it up rather than attempt to agree on shrinking it down to something understandably simple. In the end, GateHouse will become the loser on this with their exclusive, proprietary claim the same as Beta went with Sony, as just one of many examples. The reason this case is so hard to predict is because it is so hard to understand if GateHouse really has a valid claim because it is contradictory to the Internet and society’s exchange of ideas and free communication.
Ron: The only purpose? On what planet?Last Friday, there was a headline and lede on Boston.com’s Needham page, taken from the Needham Times, reporting that schools were closing early because of the storm. It gave the time, too. What more do you need to know?Do you read every story, or do you skim?The controlling case regarding fair use involved a 200-word snippet taken from Gerald Ford’s memoirs. It was judged not to be fair use, because it was the only part of the book anyone would care about. (It involved the Nixon pardon, naturally.)Mind you, I’m not endorsing either party’s position in this suit. But I can certainly understand GateHouse’s argument. I’m looking forward to seeing the NYT Co.’s legal response.
That one would be an especially bad example for GateHouse to cite, since it most likely was a simple repetition or digest of a press release or e-mail from the Needham school department.
Mark Potts’s take on the lawsuit: GateHouseGate
Perhaps the nub of fair use is the commentary that surrounds it. If you use a quote, even an extended quote, from a work but surround it with analysis or commentary, then perhaps you have used it fairly.If you use JUST the quote, so that the quote is the totality of your work, without adding any original matter, then perhaps using just the headline and the lede is not fair?(If so, are aggregators allowed? Can I go on using Google Reader, to which I have become quite attached?)I’m no lawyer, nor am I a serious student of such issues, but is that formulation any part of the definition of “fair use”?
Ron: Here’s an excerpt from Mark Potts’ post: “The problem, I fear, is a dinosaur or two in GateHouse management that doesn’t quite understand what’s going on here, and is overruling the smarter folks at the company and siccing the lawyers on the Times Co.”I can assure you, as a matter of fact, that Potts has no idea what the dynamics are inside GateHouse. Since he credits the company with generally taking a progressive stance on Web issues, he might start with the assumption that they haven’t suddenly gone insane.
Steve: What you are talking about is whether use of the copyrighted material is “transformative,” and it is indeed an important consideration to any fair-use case, including this one.
So I guess one question is – is news aggregation “transformative”?
I’ve often wondered what benefit our newspaper (a non-Gatehouse weekly) gains by having our content on news aggregator sites like Google news.I think the short answer is none. Any extra traffic our website might get is from non-local sources, which our local advertisers don’t really care about. That might sound terribly provincial and luddish (I think I just made up that word), but to me that’s that the way a good local newspaper should be. If you don’t have a niche, you’re in trouble.The key thing here for me is that we’re not just talking about headlines here. They use lead graphs and photo sometimes. That’s a big leap from the traditional hyperlinking the Web was founded on. And, as has been pointed out in other comments, there’s no attempt to add anything “transformative” here. In this case I sympathize with Gatehouse.
To me the issue here is whether the Globe is making simply casual use of links to Gatehouse content, in the same vein as bloggers might claim. Or, has the Globe incorporated these links into the core of its content with the purpose of elevating its own traffic and thus potentially diverting revenue from Gatehouse. Ani asks that the content issue be divorced from the commercial question. Alas, as well-intentioned as journalistic media might be, this work, no matter the platform, is in fact a business. It needs to take in sufficient revenue to cover its costs and pay its people, and to deliver at least a reasonable return on investment (ROI) to those who take the risk to make it happen.
I think what I’m wondering is whether when different websites with different missions link, what they’re doing is different enough to result in user traffic to all the sites involved, because what the user is getting from each site is different. But it’s true, the secondary site is getting something for nothing, and if that’s all the secondary site is doing and no other sites find linking to that secondary site’s own original content makes sense, then the linking business won’t work as a kind of collective in which everyone shares in the costs and the benefits. I realize I’m sort of musing in theory, and you all may have thought this through already and have a clearer idea than I do about how things can and do work in practice.
From my point of view it’s ironic that GateHouse may be involved in a landmark court case affecting the future of journalism because they own my city’s only daily newspaper and it is uniformly and consistently awful.