What is "fair use"? It's the question that was at the heart of GateHouse Media's lawsuit against the New York Times Company for alleged copyright infringement and related charges.
By settling out of court Monday, the two parties spared us all the disaster that could have resulted from a federal judge trying to set rules for how, and how much, one website can link to another. Thank God. Nevertheless, the underlying issue remains worth thinking about.
Fair use allows you to reproduce a copyright-holder's property without permission and without paying for it. A typical example: grabbing a short excerpt of a copyrighted work for the purpose of commenting on it, as in a book review or a blog post. It's fair use, far more than linking, that was at stake in GateHouse's dispute with the Times Company.
GateHouse, a national chain that publishes 125 community newspapers in eastern Massachusetts, filed suit in December to stop the Times Company's Boston Globe from loading up its fledgling Your Town portals with content from GateHouse's Wicked Local sites. The Globe unveiled Your Town in three suburban communities late last year, and announced that it intended to move into about 120 cities and towns, virtually every one of them served by a GateHouse paper.
Under the terms of the settlement (pdf), the Times has agreed to stop automatically aggregating content from GateHouse's RSS feeds, and to respect any technological barriers GateHouse may set up. Both parties have said they recognise the right to link to outside content, including each other's.
It's hard to say what the practical effect will be until we see it, and the Globe has until 1 March before it has to comply fully. But the agreement bars the Globe from "copying any original content" from GateHouse, which apparently will require the Globe to stop reproducing headlines and ledes, with links, from Wicked Local. "I think that's pretty right on," Times Company spokeswoman Abbe Serphos told Zachary Seward of the Nieman Journalism Lab.
Thus the agreement may make it more likely that Your Town will link to Wicked Local in a more blog-like manner, guiding readers to GateHouse stories with commentary and context rather than simply reproducing story tops.
"To put it in the language of online-journalism theory, they have to shift a bit from raw aggregation to something closer to curation," writes Nieman's Joshua Benton.
That seems to be how GateHouse interprets it. "What we never intended to do and don't have any issue with is reasonable best practices on the web for linking and deep linking," GateHouse president Kirk Davis told me. "The agreement clearly stipulates that."
But when I spoke with Bob Kempf, vice-president of product and technology for the Globe's Boston.com sites, a somewhat more ambiguous picture emerged. "We understand aggregation is important to the web," he said. "Our view and practice regarding fair use regarding ledes and headlines haven't changed. All we've done here is reaffirm a practice and policy that was always in place." So I guess we'll have to see how this plays out.
Of course, the practice of linking to outside content is the essence of the web. It's not uncommon for websites, including some of GateHouse's, to run automated feeds from outside sources. That has led critics such as new-media advocate (and Guardian columnist) Jeff Jarvis, among others, to attack GateHouse, arguing that if the company had prevailed, the internet could have ground to a halt.
"I'd think GateHouse would have better things to do with its spare resources and time than try to ruin the web," Jarvis harrumphed on his blog, Buzz Machine, last week.
In fact, though, the GateHouse view of fair use is nuanced and quite specific. Anyone who wants to understand this case should read a report (pdf) filed by UCLA law professor Douglas Gary Lichtman, who was hired by GateHouse as an expert witness, and who may have testified had the case gone to trial. (Ironically, I've got it because the Times Company included it in a filing asking that Lichtman not be allowed to testify.)
"Defendant's [the Times Company's] copying allows the defendant to produce hyper-local websites that are in essence perfect substitutes for Plaintiff's [GateHouse's] original sites," Lichtman writes. "There are token differences to be sure. But in no meaningful way do any of the accused sites differ from the originals in terms of their purpose, meaning or effect. Quite the opposite, Defendant's sites target the same audiences, and the same advertisers, for the same purpose of furnishing news and information for and about a specific local community, each and every day."
In other words, according to Lichtman, the problem with Boston.com's Your Town sites is not that they link to Wicked Local content, but that they do so in such a comprehensive way that they have become a virtual replacement for Wicked Local. The key, I think, is Lichtman's observation that Your Town uses GateHouse content to go after exactly the same readers and advertisers that GateHouse is trying to reach. If you accept that interpretation, then it's no wonder GateHouse executives reacted as they did.
"We want to be the dominant starting place for people in a community, and we want to earn that right through original reporting," GateHouse's Davis told me. Yet Boston.com's Kempf denies that the two players are even competing with each other, calling Your Town "a facilitator and connector" and adding: "This is a complementary play as opposed to a competitive play."
So give GateHouse and the Times Company credit for pulling back from the brink. If Kempf and company change their practices, the result may be richer, more useful Your Town sites. And that, in turn, will force GateHouse to improve Wicked Local.
With the internet continuing to grow and change rapidly, the best solution to cases like these is to muddle through and let the web evolve through innovation and shared experience. We should all be grateful that the settlement allows for precisely that.