GateHouseGate: Why Did the New York Times Wimp Out?

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.

Comments

[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?