Why GateHouse should settle its suit

In my latest for the Guardian, I attempt to break down the issues in the case of GateHouse Media v. New York Times Co. to their essentials — and urge that the two sides settle their differences lest the future of online journalism be harmed.

Monday morning odds and ends

I don’t plan to do much blogging this week, but I do want to call your attention to a few items:

  • Chuck Tanowitz and Adam Reilly have both written sharp analyses of GateHouse Media’s lawsuit against the New York Times Co. I think Reilly is on the mark with his observation that the Globe, through its Boston.com Your Town sites, is going beyond mere linking and is trying to establish itself as a substitute for GateHouse’s Wicked Local sites, while using GateHouse’s content.
  • Joe Dwinell of the Boston Herald has also weighed in with a good item [link now fixed] on the suit. I do disagree with his characterization of this as “David vs. Goliath.” Both GateHouse and the Times Co. are large, publicly traded media companies that are fighting for their financial lives. Call this Wounded Goliath I vs. Wounded Goliath II.
  • Sean Polay, a top Internet guy for Rupert Murdoch’s Ottaway Newspapers (including the Cape Cod Times and the Standard-Times of New Bedford), says he wouldn’t mind at all if Boston.com linked to Ottaway content. Interesting, given that Herald publisher Pat Purcell recently accepted Murdoch’s offer to run the Ottaway papers.

Finally, a source has provided me with a copy of Barclays’ most recent report on the New York Times Co., the one that placed the value of the Globe at a mind-bogglingly low $20 million. I have posted it (PDF), so you can have a look for yourself. Perhaps a few gimlet-eyed Media Nation readers can find some gold.

I’m dubious. As you will see, Barclays values the Globe at somewhere between $12 million and $20 million — lower than the value of the “Worchester Papers,” which it places at somewhere between $15 million and $25 million. That can’t be right.

And, come on — the “Worchester Papers”? Does someone at Barclays think the Worcester Telegram & Gazette are two different papers?

More resources on the GateHouse case

Soon it will be Christmas Eve in Media Nation, so I don’t want to get too bogged down with blogging today. But I do want to call your attention to the excellent work the Citizen Media Center is doing on the matter of GateHouse Media’s lawsuit against the New York Times Co.

First, there is Citizen Media founder Dan Gillmor’s nuanced take. (Is Jeff Jarvis going to call his ally Gillmor “clueless”? It’s time for Mr. Buzz Machine to settle down with a nice cup of decaf and take another look at this.) Next, the Citizen Media Law Project offers an analysis of GateHouse’s legal claims. The center is also aggregating information about the case as it unfolds. Indispensible stuff.

Yesterday U.S. District Court Judge William Young rejected GateHouse’s request for a temporary restraining order, which would have prevented the Times Co.’s Boston.com from linking to GateHouse content immediately. (GateHouse story here; Boston Globe story here.)

A trial date has been set for Jan. 5, which seems pretty aggressive, given that Media Nation hears the Times Co. has been given a deadline of Jan. 6 to respond to GateHouse’s complaint. In all likelihood, the Jan. 5 session will just be a chance for everyone to exchange business cards and New Year’s greetings before getting down to work.

How the GateHouse suit looks from both sides

I don’t want to prejudge the lawsuit GateHouse Media filed against the New York Times Co., which owns the Boston Globe and Boston.com, except to say it’s a fascinating case that will be watched closely by everyone in the news business.

There’s a lot that cuts both ways. Here’s how I think it looks from the Times Co.’s point of view.

By putting together a series of Boston.com Your Town sites that link to content in the Boston Globe, independent blogs and other newspapers, including GateHouse papers, the Times Co. is doing exactly what new-media experts are advocating. Currently there are three, in Newton, Needham and Waltham. But Boston.com’s Bob Kempf has said the goal is to roll out 120 Your Town sites throughout Eastern Massachusetts.

Rather than treating your news site like a walled community, the idea is to offer intelligent aggregation, linking not just to your own content but to that of other news organizations as well. An example of a mainstream news organization doing this is the Washington Post with its Political Browser, which offers a roundup of what its editors believe is the best political coverage online, regardless of whether it resides on the Post’s servers.

Act as a trusted guide, so this thinking goes, and readers will reward you by coming back, even though you keep sending them to other sites. And as for the news organizations to which you’re linking, it’s a win-win for them, since they’re receiving more traffic than they otherwise would.

Then there’s how this looks if you’re, say, Kirk Davis, the president of GateHouse Media New England.

From Davis’ point of view, what Your Town is doing is not offering intelligent aggregation; it’s simply scraping headlines and ledes off GateHouse’s Wicked Local sites and presenting them as Boston.com’s own news.

Even if Your Town drives traffic to individual GateHouse stories, it is destroying the value of the Wicked Local home pages — including those in Newton, Needham and Waltham. There are GateHouse papers in some 125 communities in Eastern Massachusetts, and the prospect is that Your Town and Wicked Local will be going head to head in each one.

Yes, Boston.com gives credit to the GateHouse papers, and yes, you have to click through to read the stories. But in many cases you don’t have to read the stories to get the gist of it. This is not a novel proposition — earlier this year, the Associated Press went after bloggers for reproducing its headlines and ledes, arguing that represented most of the value of its news stories.

By offering what copyright lawyers refer to as the “substantiality” — that is, the best and most marketable part — of GateHouse’s stories, Boston.com, GateHouse charges, is not complying with the notion of “fair use,” which defines the circumstances under which a copyright-holder’s work can be re-used without permission.

And, of course, both the Times Co. and GateHouse are trying to sell advertising. I’ve seen several observers attempt to draw parallels to Google News. But you will not find any ads on Google News. That doesn’t necessarily solve the fair-use problem; to oversimplify, the test is whether the copyright-holder is being hurt, not whether those re-using the content are making money. But it does make a difference. (And it definitely makes a difference with GateHouse, since it publishes its content under a non-commercial Creative Commons license.)

In this case, both the Your Town and Wicked Local sites feature local advertising, which, ultimately, is what this dispute is all about.

Here’s a round-up of some of the latest developments.

  • The Recovering Journalist, Mark Potts, has no sympathy for GateHouse’s position, and speculates that “a dinosaur or two in GateHouse management” are behind the lawsuit. Potts is entitled to his opinion, but his speculation is wrong — it’s not the dinosaurs. Or at least it’s not just the dinosaurs.
  • I’m quoted in accounts this morning by Russell Contreras of the Associated Press (formerly of the Globe) and Christine McConville of the Boston Herald.
  • More coverage by GateHouse News Service reporter Neal Simpson and by David Kaplan of PaidContent.org.
  • Jeff Jarvis jerks his knee in such a predictable manner that he risks dislocation.
  • At Boston Daily, Paul Flannery offers some smart thoughts.
  • Yesterday I posted GateHouse’s complaint (PDF). This morning I’ve added an affidavit (PDF) filed by Greg Reibman, editor-in-chief of GateHouse’s papers in Greater Boston. I look forward to posting the Times Co.’s response as well.

Times Co. responds to GateHouse lawsuit

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.

GateHouse complaint now available

Here is the complaint (PDF) that GateHouse Media has filed against the New York Times Co. in U.S. District Court. Nothing startling; more of a fleshing-out of what we already know.

One thing I find interesting is that GateHouse accuses the Times Co. of trademark infringement. The argument is that readers of Boston.com’s “Your Town” pages might not realize that links to GateHouse papers such as the Newton Tab and the Needham Times actually have nothing to do with Boston.com.

The lawsuit, filed on GateHouse’s behalf by the Boston firm of Hiscock & Barclay, charges the Times Co. with copyright infringment; unfair competition and “false designation of origin”; false advertising (allegedly by touting “Your Town” as comprising original content); trademark dilution; trademark infringement; unfair business practices; and breach of contract, pertaining to the Creative Commons license under which GateHouse makes its content available to noncommercial Web sites.

Universal Hub won’t link to GateHouse

Adam Gaffin, co-founder and editor of the indispensable Universal Hub, writes:

I make money from ads on pages with links to GateHouse articles, so effective immediately, I won’t be linking to any more articles on GateHouse sites. It’s a shame, GateHouse papers do some good work and they seemed to understand how the Web is built, but the last thing I need is to defend myself from a lawsuit over hyperlinks.

The lawsuit is barely a few hours old, and already there’s collateral damage.

GateHouse sues over “Your Town” sites

GateHouse Media will file a lawsuit against the New York Times Co. in U.S. District Court, claiming that links to GateHouse content on Boston.com’s “Your Town” sites constitute copyright infringement, according to an e-mail sent out internally by Kirk Davis, president of GateHouse Media New England.

The case could settle some legal questions about how much one news organization can use of another news org’s content. The Boston.com sites — currently in Newton, Needham and Waltham — take just a line or a brief summary from GateHouse papers such as the Newton Tab, the Needham Times and the Daily News Tribune of Waltham. (“Your Town” also links to local blogs and other news sites.) Boston.com’s Bob Kempf, himself a former GateHouse official, has said the goal is to roll out “Your Town” in 120 cities and towns.

Since Boston.com is selling advertising on its “Your Town” pages, the argument is that the New York Times Co., which owns Boston.com, is profiting from GateHouse’s journalism. And even if Boston.com is driving traffic to individual GateHouse stories, there’s an argument to be made that “Your Town” is diminishing the value of GateHouse’s “Wicked Local” home pages in those communities.

The full text of Davis’ e-mail is as follows:

To Staff:

As many of you know, there has been considerable discussion within our organization about developments surrounding our local web sites, particularly Newton, as we have followed The Boston Globe’s announced plans for community web sites and how they have executed their strategy.

After being unable to resolve the matter informally, GateHouse has commenced legal action in federal district court in Boston today against the New York Times Company in order to prevent the continuing infringement by Boston.com of GateHouse’s valuable intellectual property, created through the effort, experience and expertise of GateHouse personnel. GateHouse has taken this step to enforce its rights under the law and protect the integrity of its trademarks and original news content, in furtherance of its ability to provide hyperlocal news coverage to its newspaper readers and website viewers in the communities throughout the greater Boston region which it has served over many years.

As a matter of policy, I won’t be commenting further on this matter. Instead, it is appropriate that we let this matter take its natural legal course. Simply put, I hope you derive from this development that we value greatly your efforts, commitment and talent.

When appropriate I will update you further on this matter.

I sincerely hope you enjoy the holidays. It’s unfortunate that the economic backdrop is so unsettling, but we’ll work through it. As I have shared with you many times, we occupy an important niche in the media mix. Local news and relationships are our strength and we will safeguard both.

On behalf of the senior management team, we deeply appreciate your commitment!

Sincerely,

Kirk Davis
President
GateHouse Media New England

This is one of the most important stories in the newspaper business right now. It will be fascinating to see how it plays out.

Boston.com unveils Needham site

Boston.com’s hyperlocal site for Needham has debuted. And there are a ton of links to GateHouse’s Needham Times as well as the Hometown Weekly — but not much Boston Globe content. “Wicked Evil Needham” is how a GateHouse source describes it, a play on GateHouse’s “Wicked Local” sites.

Which brings me back to the video I linked to yesterday, in which Boston.com’s Bob Kempf talks about eventually offering 120 hyperlocal sites. I’m kind of scratching my head over that. In a community where Boston.com can put together a page featuring a decent amount of Globe content and links to local, independent bloggers, a few links to other papers’ Web sites strike me as fine. That’s why I think the Newton site is promising.

But what do Kempf and company plan to do in a community like, say, Danvers, worldwide headquarters for Media Nation? We have two papers covering our town: GateHouse’s Danvers Herald and CNHI’s Salem News. Both do quite a nice job. But there are no local bloggers in Danvers whom I’m aware of. And it’s not very often that Globe North does a Danvers-specific story.

Would Boston.com really put together a hyperlocal page consisting of almost nothing but links to the Danvers Herald and the Salem News?

I realize I’m being ridiculously speculative. So let’s wait and see.

Update: Waltham is up, too (via Elana Zak).

120 Boston.com hyperlocal sites?

Someone just called this to my attention. It’s a three-minute promotional video made by the Boston Globe to promote its Boston.com Newton hyperlocal site. In it, you will see Boston.com’s Bob Kempf explain that the plan is eventually to expand the Newton idea to 120 cities and towns.

When it comes to news you can use, though, it looks like Boston.com still has some bugs to work out. (Via Adam Reilly.)