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« GateHouseGate: Settled | Main | A Balanced Local Diet »

January 26, 2009

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Dave Mastio

I think there are a couple things you are missing.

Some of the screen shots I saw seemed to show a majority of aggregated links at the NYT's hyper local sites coming from wickedlocal sites. There's a good chance that would run afoul of the 4 part fair use test on the grounds that the NYT site had become a commercial replacement for the wickedlocal site.

Add that uncertainty to the fact that if the NYTs in defending itself had won an expansive definition of fair use, then that definition could be used to aggregate the NYTs content all over the U.S.

I bet a significant portion of the NYTs leadership still thinks of itself as a content creation company that benefits from a closed or walled-garden system.

Bill MItchell

Mark,
As confusing as the settlement itself is, I wonder if a clearer sense of digital fair use could emerge from this: fine to link (deeply or otherwise), fine to excerpt, not fine to cut and paste to the point of replication.
Say I'm a reader or advertiser in Newton looking for a quick update local news and I see this on Boston.com:
Aldermen approve new parking program
One hundred and sixty-five parking meters will be bagged or replaced as soon as April for a new parking program designed to improve the parking experience for Newton businesses. Wicked Local News, 1/21/09
Yes, I may care enough to click through to the GateHouse site that created that content (with precisely the same headline and lede). But if I don't (the likely majority of readers), hasn't GateHouse lost the value of what it created?
I can see publishers in GateHouse's shoes opting for the potential traffic in some circumstances, but probably not in a hyperlocal environment that has such limited audience/revenue potential to begin with.
Entirely possible that I'm missing something (no J.D. after my name), but isn't this the sort of thing fair use is designed to prevent? Or do you believe fair use itself should no longer apply?
- Bill

Mark Potts

Bill:
I'm no lawyer either. But I'm not sure your definition of "fair use" squares with the legal definition, at least as I understand it. And who's going to determine what constitutes the proper link? Hypothetically, if Boston.com rewrites the hedline and lede so that it's BETTER than WickedLocal's, thus deemphasizing the click, what does that mean? Would Boston.com thus have devalued WickedLocal's content by borrowing its essence but discouraging a link?

Fair use always walks the fine line between excerpting and plagiarism, in my mind. I'm not sure where that line is. And if GateHouse is so down on the value of its content that it thinks nobody will click to it if they just read a hedline, then maybe they need to reevaluate the quality of their content.

There are a whole lot of thorny ramifications from this case, even though it's been settled, and we're probably going to need somebody to take a fair-use/linking/aggregation case all the way to the Supremes to get a good read on it.

I think we're in new territory here, and that's why I'm disappointed that the Times Co. didn't put its weight behind getting this settled once and for all. I think I know how it would have come out, based on my understanding of the law and existing precedent--and lawyer friends told me GateHouse had no case--but it would be nice to get a definitive ruling. It'll happen at some point, hopefully in a better case.

Dave Mastio

I'd like to be a fly on the wall for the Gatehouse execs depositions:

So sir, you say boston.com's practice of running a headline and the opening graph of your stories takes all the value and doesn't encourage readers to click through to the full story?

Then could you explain to me why when you produce rss feeds for your site that you give readers the headline and the lead graf of news stories? Isn't it because the headline and lead graf entice interested readers into the story?

What magically changes when the headline and lead graf appear at Boston.com?

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