The Times Co. answers GateHouse

Having just skimmed through the New York Times Co.’s 100-page response (PDF) to GateHouse Media’s lawsuit over the Times Co.’s linking practices, I’m more convinced than ever that this case could harm Internet journalism if it goes to trial.

Because the case has First Amendment implications, it’s on the fast track — a trial could begin in U.S. District Court in Boston as early as next Monday.

As a brief reminder, GateHouse is suing for copyright infringement and related allegations because Boston.com’s Your Town sites — currently in Newton, Needham and Waltham, but scheduled to be rolled out in as many as 120 communities — link to GateHouse’s Wicked Local sites without permission.

The Times Co. claims, correctly, that linking is the lifeblood of the Web, and that GateHouse papers link to outside content as well, including stories in the New York Times and the Boston Globe. GateHouse claims, also correctly, that Your Town goes beyond normal linking practices by grabbing headlines and ledes from numerous GateHouse stories in a given community.

The Times Co.’s answer, by lawyers R. David Hosp and Mark S. Puzella of the Boston firm Goodwin Procter, argues that there’s nothing unusual about the Your Town linking practices; that GateHouse does it, too; and that GateHouse deliberately toned down its own linking practices in anticipation of its lawsuit. The lawyers write:

[G]iven that GateHouse engages in the same and substantially similar conduct that it claims is unlawful and entitles it to monetary damages, to the extent GateHouse prevails, it should be liable for identical claims based on its own past and present third-party news aggregation and verbatim headline and lede linking practices.

The brief is bolstered by printouts of GateHouse sites that aggregate news from other sources and by numerous internal e-mails. In one, written just before Your Town’s debut in Newton, Greg Reibman, editor-in-chief of GateHouse’s Metro Boston unit, wrote: “My suggestion would be for us to do all we can to make sure the Globe fails here before they roll this out to other communities.”

In a press release, GateHouse Media’s president and chief operating officer, Kirk Davis, disparages the Times Co.’s attempt to compare the two companies’ linking practices:

By trying to equate its conduct with legitimate and widespread linking practices which permeate the Internet, it is The New York Times’ counterclaims that threaten those established practices as well as fair competition in online journalism. The simple reality is that The New York Times chose to disregard these principles with its serial copying and display of GateHouse’s original content on the boston.com ‘YourTown’ websites, which it has turned around and offered to readers in the same towns served by GateHouse’s WickedLocal websites. We will defend these meritless counterclaims vigorously and consistent with controlling legal principles of fair use.

As I’ve argued before, I think Boston.com’s practice of linking to virtually every GateHouse story on its Your Town pages is overly aggressive. Even though Your Town may drive traffic to individual GateHouse stories, it seems pretty clear that the project could starve the Wicked Local home pages of the oxygen they need to survive. (By way of comparison, take a look at Your Town Newton and Wicked Local Newton.)

On the other hand, as I’ve also argued before, GateHouse overreacted by literally making a federal case out of this. Those of us who are immersed in Web journalism, especially blogging, have a sense of what’s acceptable in terms of linking practices and what isn’t. Do we really want a judge or a jury setting out in writing that — for instance — you may be breaking the law if more than 31.5 percent of the links on your site go to a single source?

It would be in everyone’s best interest, especially the Internet community’s, if this case is settled before it goes to trial.