More on the Times Co.’s answer to GateHouse

Blogging at the Nieman Journalism Lab, Zachary Seward takes a deeper look at what I wrote about earlier this week — that the New York Times Co., in its answer to GateHouse Media’s copyright-infringement suit, is alleging similar linking practices by GateHouse, served up with large dollops of hypocrisy and track-covering on GateHouse’s part. (If you’ve just arrived, here’s my best attempt at summarizing the case.)

Seward quotes from an internal e-mail by Howard Owens, GateHouse’s director of digital publishing, in which Owens seems to condone the very linking practices over which GateHouse is now suing the Times Co.

Does this help bolster the Times Co.’s case? Perhaps. What’s missing, though, is any sense of context. What the Times Co. is trying to do with its Boston.com Your Town sites is, as far as I know, unprecedented in the way that those sites scoop up every GateHouse Wicked Local link of value on a community-by-community basis.

As I’ve tried to make clear from the beginning, I’m not taking sides. I’m just trying to show why this isn’t just a typical case of one news site linking to another.

Also worth checking out is this interview with David Ardia, head of the Citizen Media Law Project, which has compiled a useful dossier on the case.

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.

Media Nation on the air

I just recorded an interview with Hamilton Kahn of WOMR Radio (92.1 FM) in Provincetown. We talked mainly about GateHouse Media’s lawsuit against the New York Times Co.

If you’re interested, you should be able to listen to it here on Friday at 12:30 p.m., though I get an error message when I try to click on the live stream. Maybe you’ll have better luck than I.

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.