On Monday, December 22, 2008, Gatehouse Media, Inc. filed what can only be charaterized as a ridiculous and frivolous lawsuit against the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media. The complaint filed by Gatehousealleges that the Boston Globe is infringing its copyrights by taking the title of the article along with the first sentence of the article and posting them to its website. Gatehouse acknowledges in the complaint that if someone visits the Boston Globe page in question, their Newton Page, and clicks on the title of the article they are immediately and directly taken to the Gatehouse page where the full article is available.
Although Gatehouse does allege that the Boston Globe is creating confusion and liable under trademark theories, these charges are undercut by the very factual recitations in the complaint because Gatehouse admits that the source of the article is attributed, along with the date the article was written, so there could not possibly be any confusion given that this is the standard way that search engines and newspapers online attribute other sources. Nevertheless, it is Gatehouse’s copyright claims that are receiving the most attention because if hyperlinking is going to come to a screeching halt on the Internet it will be thanks to the misapplication of copyright laws. According to Gatehouse what the Boston Globe is doing constitutes copyright infringement because the links are “deep links” that bypass the Gatehouse homepage, thereby causing damage to Gatehouse because they derive revenue primarily from advertising and the deep linking by the Boston Globe bypasses that advertising. This is absolutely absurd and the only justifiable outcome of this case ought to be a complete dismissal. If I were the judge hearing the case I would also issue sanctions for filing a frivolous lawsuit.
Deep links are a special kind of hyperlink, and perhaps the single most useful type of hyperlink. A deep link is a hyperlink that takes you not to the Web site home page, but rather to a page that is deeper than the home page. For example, if you were to type in the Internet address – ipwatchdog.com – you would go to our home page. If you type into the address field – ipwatchdog.com/copyright – you would be taken directly to our copyright page without having to first go to our home page. Deep linking is how search engines are able to provide such good results for what you are looking for because rather than funnel you to a home page and force you to figure out where on the website the relevant information is you are taken directly to the relevant information.
Notwithstanding, Web site owners can sometimes derive significant revenue through advertising, particularly given the growth of context advertising, such as though Google Adsense. In order to increase advertising revenue Web site owners attempt to increase the amount of traffic to certain designated pages, and sometimes even try and force you to go through multiple pages to get to where the information is that you seek so that you are exposed to more advertising. By allowing deep linking, Web site owners are not able to maximize the number of impressions any particular page receives, and this makes some Web site owners, such as Gatehouse, extremely upset. The trouble with this particular lawsuit filed by Gatehouse against the New York Times is twofold. First, there is no legal theory that will allow Gatehouse to win. Second, it is stupid business to want the Boston Globe to cease linking to their articles.
First, with respect to copyright law, the owner of a copyright has what is best referred to as a bundle of exclusive rights that includes the right to prevent others from copying and reproducing protected works. The right of the copyright owner is exclusive in nature, but not absolute. This means that the copyright owner enjoys the right to prevent others from engaging in the above mentioned activities, but the right is indeed far from absolute because of what is called “fair use.” The Copyright Act allows for copyright works to be used, and for such use not to be considered infringement, for purposes such as criticism, comment, news reporting, teaching, scholarship, and/or research, so long as the work is “fairly used.” In determining whether the use in any particular case is a fair use, Courts must consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. While there are not a lot of generalizations that can be made when discussing fair use the one truth is that the less you take the better off you are and the more likely what you are doing is going to be a fair use. With this in mind, taking the title of an article and a one sentence teaser simply cannot be considered to be anything other than fair use. Any other ruling would have an immediate chilling effect on the entire business of the Internet and it is naive to think that any federal judge would find what the Boston Globe is doing to be copyright infringement.
Second, this lawsuit is a horrible business move. Gatehouse Media, which is headquartered in Fairport, New York, claims to be one of the largest publishers of locally based print and online media in the United States as measured by its 97 daily publications, with the overwhelming number of publications in Massachusetts, New York, Illinois and Missouri. While I am not familiar with Gatehouse or their publications other than through researching for this article, I think it is fair to say that Gatehouse publishes a fairly typical local newspaper. While there is nothing wrong with local newspapers, and I do read our own local papers from time to time, the nature of being a local newspaper means that you have limited circulation. So why in the name of sanity would you want to sue the New York Times for linking to your articles and bringing more people to your website? Even more ridiculous is the failure to understand the importance of having popular, reputable sites link to your own site. The more popular and reputable sites that link to you the better your sites reputation and that means better search engine placement, which means your site becomes easier to find and attracts more people on its own. In short, the decision to sue the New York Times was incredibly stupid, naive and short-sighted. The New York Times has to fight this lawsuit and hopefully they will win and win quickly without having to waste a lot of time or financial resources. Although the complaint demands a jury trial, according to the Boston Globe it is anticipated that Gatehouse will waive a jury trial, which will expedite their defeat tremendously. While the Boston Globe is reporting that the trial has been postponed, you need to take that with a grain of salt I am afraid. There is no way that a trial was scheduled already on a complaint filed on December 22, 2008. What this report almost certainly means is that the initial hearing on the request for preliminary injunction has been postponed and will take place on January 26, 2009.
In the meantime, if you are an investor of Gatehouse Media you might want to make some inquiries into how the company is being run. I see no way that this lawsuit will succeed and it is going to do nothing other than isolate your publications. Good luck making money off of advertising if your publications become isolated and if major search engines decide to exclude your news stories because they have no interest in defending frivolous lawsuits.
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide
Join the Discussion
5 comments so far.
[email protected]January 6, 2009 05:30 pm
NY Times wants to lose because they want to see a decision that headlines and first paragraph is not protected by “fair use”.
Although the many small websites are copying far more then headline and first paragraph, it is not economic to pursue. A clear ruling would decrease this significantly.
Because readers get the main part of the story from the headline and first paragraph, many do not bother to click. It is claimed that Gatehouse should be thankful for the clicks but the reality is the news aggregator benefit greatly by allowing readers to get the main part of the story.
If I as a reader want to read financial stories and I really respect the NY Times, I am more than happy to use Google news business section to read the headlines and first paragraph from all newspapers and perhaps look for the NY Times ones when I have to decide which one to click for the full story. If NY Times stories were not on Google News I would be far more likely to go to the NY Times business section to read financial news. The NY Times might prefer that because they can show me more ads. Therefore it is a completely rational business decision to stop allowing aggregators from using my headlines and first paragraph.
Again, I (like Gatehouse) maintain that taking the headline and first paragraph is NOT fair use and I’ve spent quite a bit of time reviewing the legal issues (although I am not a lawyer nor to I have to money to prove it by hiring one). It is my sincere hope that Gatehouse will take this all the way and not fold in settlement as all the others have done. The world needs to know either way.
Gene QuinnJanuary 6, 2009 01:55 pm
Why do you think the NY Times wants to lose? Can you elaborate?
I will agree with you that there are many websites out there that are taking far more than headlines and the first sentence or paragraph. Those that take more than the headline and teaser ought to be stopped in my opinion, but that was not what I saw when I looked at Boston.com. Copyright infringement on the Internet is a problem, and as a content creator I am sensitive to those issues. I also hear you when you seem to have problems with Google and others making money from taking from others. Legally there is no problem with that as long as what they are taking is not enough to constitute copyright infringement. Perhaps it is better to say so long as what they are doing is fair use.
From a business standpoint I am convinced that Gatehouse is making the wrong decision. If they want to stop wholesale copying I am all for that, but the copying here was enhancing their business, not taking away from their business. I personally think it is wrong to look at what others are making from their fair uses and to focus on what benefit you obtain.
Thanks for sharing your thoughts.
[email protected]January 6, 2009 01:40 pm
Google is likely settling the type of cases you mention because they are afraid of a ruling against them not that they “chose to settle because they were being sued overseas”. They are willing to pay the larger players for the headlines and first paragraph but they won’t for the smaller.
I think there is a reasonable chance that NY Times WANTS to loose this even if they have a deal with Google because there are so many others. If you look at sites like: http://www.thecomingdepression.blogspot.com/ they are taking far more than the headline and first paragraph. By the way, Google is making money because of it (see AdSense Ads).
It will take a court ruling to put Google and the other news aggregators in their place. No single newspaper will prevent Google from indexing their site (with robots.txt) because all other newspapers likely wouldn’t.
The vast majority of commentators agree with you but I do not. These people are taking the heart of these stories and most people ARE NOT clicking though. Individual newspapers can not fight the trend only the courts can protect them.
Gene QuinnJanuary 4, 2009 05:48 pm
I appreciate your thoughts, but the law in this area is not at all sketchy or questionable. Google had a similar problem a while back and chose to settle because they were being sued overseas. The copyright laws as they apply to the Internet in the US are quite clear and Gatehouse has very little chance of winning.
Also, if Gatehouse loses it would not at all signal the end of the Google business model. In fact, it would be quite good for those who aggregate content.
The fact that you think it should be illegal to take a title and a sentence of original content does not mean that it is illegal or that it is or even should be a copyright violation. Gatehouse is missing the bigger picture here. If they want to attract more visitors to their website, which will undoubtedly increase the amount of advertising revenue to them and which will also increase their sites in search engine rankings then they should be thrilled that the Boston Globe is linking to them. They have obscure publications and are getting traffic directed to them from one of the premiere news sites in New England. Exactly how is that bad?
I for one was thrilled to get IPWatchdog.com included in Google news and I would be thrilled to have any of my content promoted on such visible sites. Gatehouse needs to watch what they wish for, they might just get it and that would lead to irrelevance.
ContrarianJanuary 4, 2009 05:41 pm
Thankfully, this is only one lawyer’s opinion.
The case law about the Internet is sketchy and brief at best and it’s good the deep linking, headlines and summary paragraphs issue will be adjudicated.
Google should take an interest in this case. If the court’s ruling goes against Gatehouse, it may be the end of the business model of the Googles of the world — take others work without payment and sell lots ads around it.