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.