Blurring the Boundaries Between Fair Use and Copyright Violation: NYTimes and GateHouse Media Settle

Content aggregators should pay attention to a recent settlement between the New York Times and GateHouse Media.  According to Online Media Daily, the New York Times agreed to remove headlines and first sentences of GateHouse articles referenced by the New York Times on one of its content aggregator sites, Boston.com. Is this case part of a trend?

Here’s the legal issue in a nutshell: Just about everybody agrees that people who create original content should be able to protect their work. They are the copyright holders. Also, just about everyone agrees that the free flow of information is necessary for a knowledgeable and engaged society. Thus, information needs to spread easily. It’s not hard to see that there is a natural tension between these two premises. The law attempts to resolve the conflict using the doctrine of “Fair Use.” Under this doctrine, it’s okay to use other people’s content in limited ways and at limited times. Whether you’re stealing content or just making ‘fair use’ of someone else’s content is often not an easy call. Reasonable minds can and do disagree on this topic.

Was the New York Times stealing GateHouse’s content by republishing their headlines and the first sentences of their articles? Or was it making ‘fair use’ of the content by using limited parts (only the headline and first sentence) in a limited way (a link from its news site)? It’s an important issue because many many online media properties link to articles on other sites while referencing the article’s title and first sentence. Content aggregation is huge business! And often very useful for the public. What will happen to content aggregation as a business model if they have to create unique headlines and ‘blurbs’ for each article they want to link to?

Because this case (and a couple others like it) were settled privately, we don’t know how a judge would have ruled. on the issues. For my part, I’m inclined to think that the limited use described here falls under the Fair Use doctrine. Maybe the New York Times settled because it was afraid of getting a bad precedent that would shut down this common content-sharing strategy altogether? Perhaps it was safer to enter into a licensing agreement with this one company rather than risk losing a business model…

The real kicker is what a bizarre business move this appears to be for GateHouse. They’ve made it more difficult for the New York Times to link to them. Whu-hoo.  Congratulations GateHouse–Less traffic!

Best Regards,
Sarah

P.S. Big hat tip to Michael Martinez for bringing this issue to my attention. 🙂