UPDATED
One of the most intriguing current media legal cases pits GateHouse Media, which owns a pile of newspapers in New England (and elsewhere) against the New York Times Co., owner of the Boston Globe and Boston.com. (UPDATE: A Judge has denied, for now, an injunction.) I’ve been looking at this from both sides’ perspectives, and this is not as simple as it looks on first glance.
A disclosure: I’m a New York Times shareholder. But if the facts are true as alleged in GateHouse’s complaint, I’m leaning toward taking GateHouse’s side on this — even though I think GateHouse is making a strategic mistake in the first place — for reasons I’ll explain below.
This is a copyright fight at heart, about Boston.com’s Your Town sites, local aggregations of information and news for surrounding communities. The Your Town project, which I believe is a good idea, has three towns up now and the Globe has plans for dozens more.
GateHouse, meanwhile, has been operating sites — before Your Town got started — called Wicked Local. Both of these sites aggregate from various sources, sending traffic to the sites they point to, which is part of why many of us consider aggregation generally positive for everyone involved. So far so good.
GateHouse doesn’t buy that when it comes to what Your Town is doing: copying some headlines and story ledes from Wicked Local and GateHouse news sites (a “lede” is the start of a story) onto the Your Town pages.
Now, this is exactly what Google does on Google News, at least in some respects, when it scrapes headlines and ledes from news sources around the world and presents them in aggregated context. Google doesn’t (yet) try to monetize these pages with advertising, and what it’s doing looks to most people like fair use (though a closer call than some; see below). Your Town and Wicked Local are very much in the business of monetizing their sites.
As Dan Kennedy notes in his extensive coverage of this case:
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.
I consider the AP’s actions the case above to be misguided, if understandable from a panicky traditional media operation. The news agency backed off, thankfully, under the ridicule it had earned.
And if the issue in the GateHouse-NYT case were solely about substantiality, I’d make a similar argument, although what Boston.com’s Your Town operation does seem closer to the edge of fair use than what Google and other aggregators do at this stage.
But the actual complaint (PDF) alleges something that, if true, makes me much more sympathetic to GateHouse. Specifically:
Lacking any cooperation from defendant, GateHouse implemented certain electronic security measures on Wicked Local, to prevent users with a certain Boston.com Internet Protocol (“IP”) address from scraping content from GateHouse’s website. Plaintiff’s security measures did not deter defendant in the least — defendant posted original content to the Infringing Website the very next day after they were installed.
In other cases of this sort, those of us who have argued that aggregation-via-scraping is fine have also tended to say that sites that don’t want to be crawled have a way of fixing the problem: blocking access to the software robots doing the crawling. What happens when your barrier is evaded?
Google and other search engines look for files in the HTML code that make clear whether or not the site wants to be indexed. If the “robots.txt” file say, effectively, “Leave me alone,” the robot obeys. It’s not the law, but it’s the custom — and it’s the right custom.
If Boston.com’s Your Town crawlers/scrapers are going around the technological blockades, that strikes me as — at the very least — poor behavior. I don’t know whether it’s legal, but it’s not honorable. Boston.com should take the hint and stop pointing to GateHouse.
Make no mistake: I believe that turning away page views that come from other sites is, in the end, a mistake. Even so, GateHouse should have the right to make that mistake.
UPDATE: Please read the comments, which are rich with ideas and observations.
Also, the Citizen Media Law Project (I’m a co-founder) has posted a detailed initial legal take on this case.
on Dec 23rd, 2008 at 12:40 pm
Seriously- the fact that they circumvented an IP block is not at the heart of the case. Also, who said Boston.com actually ‘scraped’ the GateHouse sites? They could use real people, people not using a blocked IP, RSS feeds.
Of course GateHouse has the “right” to make the mistake– doesn’t make it any less shortsighted. Even their description of the problem– “deep links” that bypass their “home page” sounds like a complaint from 1995.
on Dec 23rd, 2008 at 12:43 pm
[…] UPDATE: Some more commentary from the blogosphere: GateHouse Lawsuit vs. New York Times Co. has Dire Implications A Danger to Journalism GateHouse: O hai, internetz — we r fail Gatehouse sues NYTCo over aggregation: But do they have a point? Globe vs. Gatehouse Part I Peeking inside Pandora’s Box GateHouse v NY Times Co.: Not So Simple After All […]
on Dec 23rd, 2008 at 12:57 pm
Dan,
I’m not with you on this. To reduce your argument all the way, it’s this:
Your right to fair use ends at my willingness to license it.
If I publish something, it’s fair game. If you link to it, but I decide that I don’t want you to link to it – for whatever reason – I can’t stop you.
To your point, I can ask you – or even demand that you stop it – but you are free to link to me as long as I am publishing in the clear.
I can also try to put up blocks to your IP range to keep you from reading my blog. But if you figure a way around that, you’ve only thwarted my intent, no laws, real or honorable, have been broken.
on Dec 23rd, 2008 at 1:34 pm
The wicked local site uses an RSS feed which gives away a certain level of the content. So is Google or netvibes going to be sued for using these feeds to provide a headline, lede, and link back to gatehouse?
on Dec 23rd, 2008 at 1:42 pm
RE: Security measures. Did they tell Boston.com? Is it possible the wicked local security measure wasn’t effective due to design? If Boston.com has 20 IPs and their measure only blocked 10 of them, it’s not as though Boston.com did something to circumvent the block.
The complaint doesn’t appear to define the measures so it’s hard to tell if this is something tangible or relevant.
It’s a case of sour grapes to me, and a poor advertising staff who isn’t selling the article pages. Based on the complaint (Par. 21) they derive revenue from the home page. They could have spent the time/effort of this lawsuit on effective ad sales.
With the fact that RSS provides the exact same syndication Boston is providing, it’s tough to argue copyright.
on Dec 23rd, 2008 at 2:24 pm
Dan, meta-point: This is one of those cases where the facts and the law just can’t be discussed rationally in the bogosphere, because it strikes at the heart of the A-list economy and consulting business. Anyone who writes a good skeptical critique of what the A-lister believe is subject to having the mob sent after them for heresy. So you’re going to be left with cheerleaders and the other side will be Andrew K33n types. This shows a real deep problem with your new models of journalism.
on Dec 23rd, 2008 at 2:53 pm
Gillmor’s suggestion that the fair use analysis depends on whether the copyright owner objects or consents to copying (through IP blocking or otherwise) is contrary to the law. As the Supreme Court has stated,“[i]f the use is otherwise fair, then no permission need by sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994).
The copyright portion of this case will turn on whether the headlines and ledes are protectible under copyright law in the first instance, and, if so, which way the four statutory factors (the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market) point. Under binding Supreme Court precedent, GateHouse’s efforts to block copying should play no role. Gillmor’s effort to insert a fifth fair use factor (“whether the copyright owner takes steps to block the use”) would result in a radical retrenchment of the fair use doctrine and should be soundly rejected.
on Dec 23rd, 2008 at 6:23 pm
[…] Dan Gillmor writes, “…I’m leaning toward taking GateHouse’s side on this — even though I think […]
on Dec 23rd, 2008 at 7:51 pm
A quick note: Contrary to the comment by “Copyright Lawyer” I don’t assert that the fair use analysis depends on whether GateHouse holder objects or consents to what Boston.com is doing. There are other possible legal avenues GateHouse might travel on that issue — and I very much hope they DO NOT venture in that direction.
on Dec 23rd, 2008 at 9:28 pm
Well, I am glad that you say you don’t believe that the availability of a fair use defense depends on GateHouse’s consent or efforts to block copying. But quoting the complaint on this issue, in the context of a legal discussion, and then saying that that allegation in the complaint makes you “much more sympathetic” to GateHouse’s position, certainly suggests you believe that this issue bears on fair use.
Moreover, your assertion that “Boston.com should take the hint and stop pointing to GateHouse” because GateHouse attempted technical anti-copying measures, is inimical to a robust fair use doctrine. If the use is fair, one shouldn’t hesitate to continue the use, even in the face of objections from the copyright owners. Copyright owners too frequently object to fair uses of their works, and the doctrine would lose much of its force were fair users to “take the hint and stop” whenever copyright owners attempted through technical means to bar such uses.
on Dec 24th, 2008 at 1:26 am
Copyright Lawyer, I’m going to sort-of defend Dan here. I think you’re missing that the posting is not about US copyright law, but what might be termed “A-lister law”, which is like Catholic Church Canon Law. It’s a framework for a particular belief system, and it matters to a lot of people who follow it, but it isn’t US law. So talking about what Dan says solely as a matter of US law is at cross-purposes, like a priest’s view of divorce as a matter of theology.
on Dec 24th, 2008 at 10:03 am
I too am a NYT shareholder who also sides with GateHouse. If this is the only way to legally establish that the labor-intensive output of journalists has value, so be it. The act of gathering and verifying and codifying information by definition creates intellectual property. Those who propose that the free-lunch theory should rule ignore the reality that those who do the work have every right to seek and expect compensation. Furthermore, those who provide the infrastructure to support these acts of journalism, including paying the journalists, have a right to seek a profit. Somewhere, a decade ago, these principles were lost as purveyors of traditional news products went off the rails and decided to give away their seed corn. Now GateHouse management is asking the courts to reaffirm the right of ownership. I wish them well.
on Dec 24th, 2008 at 10:05 am
I agree with the sentiment I think Seth Finkelstein is expressing. Seems like anyone who argues in favor of this suit gets shouted down with irrational hatred.
Still, I’m a glutton for abuse so I’ll give it a shot:
I’ve followed Gatehouse and its progeny since the days of Cap Cities, Fidelity and CNC. I dislike most everything they’ve done. Nearly all their papers were better before they started squeezing them to pay for debt load.
I say all that that because I’m strongly rooting for Gatehouse here. There’s a larger issue at play that affects the entire industry. This isn’t about linking. It’s about information. Information isn’t free.
Boston.com isn’t simply linking to stories from other websites. They are scraping the lead graphs of all the articles. That’s a clear distinction inho and one that is not being discerned in much of this discussion.
Many of the folks who read the Newton site are never going to click thru to Wicker Local and thus no benefit accrues to Gatehouse for their reporters efforts. Somebody still has to pay that reporter’s salary, benefits, etc. It’s not going to be Boston.com.
There are plenty of reasons the newspaper industry is imploding, and yes many of the wounds are self-inflicted, but giving away content for others to profit from is not a business model that can succeed. In the end it will hurt everyone because there will fewer reporters out their gathering the news.
If Boston.com prevails and Gatehouse goes under (a real possibility with their stock at .04 cents) do you think the world will be a better place? Will Boston.com really cover Newton more? We all know the answer to that.
I hope the newspaper industry learns from the book publishing world. They struck a lucrative deal with Google to share revenues for their content. A similar battle is brewing over videos with Viacom and Google. When newspaper decide to stand up and stop giving away their product we might finally turn a corner. This lawsuit is one small step.
Thanks for reading. Commence bomb-tossing now.
on Dec 24th, 2008 at 10:12 am
I’m not familiar with the term “A-lister”. What is it?
on Dec 24th, 2008 at 11:05 am
[…] background. I’m not going to get into this; it’s too deep and too popular for me to weigh in. All […]
on Dec 24th, 2008 at 5:28 pm
[…] Media, while acknowledging that Boston.com is treading close to the notion of fair use, feels GateHouse may have a legitimate case if its claim is valid that Boston.com is bypassing GateHouse’s security measures to prevent […]
on Dec 25th, 2008 at 9:19 pm
Holdonasec. You say, Robots.txt “is the right custom”. robots.txt is a perfect example of the Lessigian problem of software code taking the place of contracts. Robots.txt does not restrict by IP’s. The Boston.com engineers might have a reasonable suspicion that the C&D letters have something to do with the fact that the network access is blocked, and that might be good enough for jurisprudence, but not for public policy.
The Lessigian vision of software code implementing policy is more closely realized by ACAP. From the Implementation Guide: “ACAP makes it possible to communicate to a crawler that it may only crawl content for certain specified usage purposes only.” I haven’t read the details of ACAP, but as it was written in the last few years I believe it addresses syndication.
Lessig fans should promote ACAP, because it’s a standard that the little guy could use to specify his own rights.
There’s also an HCI component as well. Boston.com could, as good faith, put an icon next to each post indicating its provenance: either Boston.com, WickedLocal, or the local citizen-contributor bloggus bloviatus fignewtonus. This would demonstrate how much content is coming from each source. (Claim 109, for those of you scoring at home.)
I’m interest in the discovery phase here. The presumption that many of the blog evangelists have been making is that links to a content site are always economically beneficial and never deterimental. Time to see some real numbers on that…
on Dec 26th, 2008 at 7:09 am
[…] You can read The Globe’s report, published on their Boston.com website, by going to this link. You can read GateHouse media’s filed complaint by going here, courtesy of Media Nation. MN also has linked over to the coverage of the issue by the Center for Citizen Media, who is doing phenomenal work unravelling the issue. […]
on Jan 29th, 2009 at 5:14 am
[…] Dan Gillmore from Center for Citizen Media puts it: If Boston.com’s Your Town crawlers/scrapers are going around the technological blockades, that […]