The New York Times historically has shown its willingness to stand up for what's right in the reporting and dissemination of news and information. Time and time again, the Times has been willing to make a stand for the rest of the industry. That's why the newspaper's name is on some of the most important legal decisions in American journalism history.
And that's also why the Times Co.'s decision to seemingly roll over in the case brought against it by GateHouse Media is so disappointing. Rather than push the case to trial in a way that might have set a valuable precedent for all Web publishers, by stoutly defending the right of its
Boston.com subsidiary to cite "
fair use" copyright law in excerpting and linking to articles from GateHouse Web sites, the Times Co. chose to wimp out with a strange
settlement. That deal seems to give GateHouse what it wanted in a pitched competitive battle in the Boston suburbs: the ability to keep Boston.com's
YourTown sites from linking at will to GateHouse content.
It's a muddled settlement, to be sure. It seems to indicate that Boston.com can't use RSS feeds and other means to automate links to GateHouse sites, but hand-crafted links–especially with rewritten headlines–may be OK, more or less. On the other hand: automated excerpts and links to GateHouse content on Boston.com search-result pages? No problem. Deep-linking? Also fine. And GateHouse insists it loves links to its sites (and linking to other sites)–but doesn't want Boston.com doing it (the settlement doesn't apply to anybody else). Boston.com executive Robert Kempf (a former GateHouse official, and hold that thought), insists the Times Co. still believes what it was doing was within the bounds of fair use; it's just not going to do it anymore. Or most of it. Or some of it.
It's really quite confusing, and disappointing.
There are whispers that GateHouse had tried to block Boston.com links with internal site codes, but Boston.com evaded that and kept linking–and then ignored a cease and desist letter from GateHouse. That's probably less than kosher, although the Times Co., at some point, at least, thought it was in the right and probably couldn't figure out what GateHouse was complaining about. (Update: The Times Co. denies that it intentionally evaded GateHouse link blockers, and notes that GateHouse dropped that allegation in an amended version of the complaint.) The settlement says GateHouse can reinstate those automated link-blockers–and Boston.com will honor them.
There's plenty of good analysis of the settlement over at the NiemanJournalismLab blog, and it's worth reading,
here,
here and
here. Especially the comments on that last one, which is rightly titled "GateHouse-NYT Co. deal: a bad precedent for the web."
It's a bad precedent indeed, even though technically it isn't a legal precedent, just a one-off settlement. Still, the next judge to face a linking case–and it will happen soon enough, as old-school print people get increasingly
scared about the expanding world of aggregation–may wonder just why a heretofore strong company like the New York Times would settle rather than fight. Alas, that may just be a sign of financially troubled times, or, um, Times. With its
finances precarious, the Times Co. may not have had the appetite it once had for a strong, protracted legal fight. How sad. (Not that GateHouse, with its 6-cent-a-share
stock price, is exactly deep-pocketed, either.)
I can't help but thinking that the root of this ridiculous and potentially extremely damaging dispute was a good old-fashioned newspaper war: GateHouse's desire try to derail the expansion efforts of a rival–a rival that happens to have
hired away Kempf, one of GateHouse' brighter digital minds, a couple years ago. Hmm. Payback can be a bitch. GateHouse this wins this battle because making it impossible to automate links to GateHouse sites will greatly slow down Boston.com's efforts to build dozens of hyperlocal aggregation sites.
The problem is, in waging an old-fashioned kind of newspaper war, GateHouse brought an antique blunderbuss to bear on a fight over a high-tech mosquito. Yeah, it may have gotten its way in the settlement, but it risked endangering the entire concept of Web linking. And the Times Co., by rolling over rather than fighting back with its traditional vigor, has left that issue very much open.
GateHouse v. Times has been tawdry from start to finish, and it all seems so unnecessary–it's just not clear at all why GateHouse would have turned away the additive traffic from Boston.com's links in the first place. And the conflicting signals from both companies over the settlement have just made things more confusing. Here's what GateHouse President and CEO Kirk Davis had to say to NiemanJournalismLab today about the coverage of the case: "You’d see comments like, ‘GateHouse is against linking.’ You’ve got to be kidding me. What do you think, we’re stupid? Of course we like linking and of course we support linking.”
Gee, you could have fooled me. But it may have been The New York Times Co., by failing to vigorously defend linking the way it previously defended important journalism principles and practices, that was the most stupid.
Update: Newspaper Death Watch has a very good analysis.
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