Wednesday, December 24, 2008

Keep an eye on dustup in Boston

UPDATED 10:50 P.M. EDT 12/24 with some further thoughts about Lanham Act and alternative torts, as well as links to the original suit and Mark Potts', John Duncan's, Damon Kiesow's, Dan Kennedy's and Danny Sanchez's takes on it. Later added Dan Gillmor and the Citizen Media Law Project.

Gatehouse sues Boston Globe parent New York Times Co. for aggregating links from Gatehouse local sites in Boston's suburbs into the new Your Town sites the Globe finally got around to creating.

(I say finally because while Boston.com is a fine site, it hasn't exactly been on the cutting edge of hyperlocal journalism.)

So far, a federal judge has denied a temporary restraining order sought by Gatehouse -- TROs are very hard to get and basically require showing immediate harm or threat of harm that can't be mitigated any other way ("other way" includes making the offending party pay through the nose), so no surprises there.

Instead, things to go a possible temporary or permanent injunction sometime after Jan. 5. (Boston.com says "jury trial," folks, though in all my years covering federal courts I've never seen a civil case go to a jury trial this fast. Usually the judge hears motions and arguments and decides whether to issue a temporary injunction pending possible trial. And, of course, often the injunction is not even issued until after the hearings and trials since the presumption is not of immediate harm and that mitigation can be done by making the offending party .. etc.)

But my point here isn't to question the procedural issues; it's to say that we all had better pay close attention to this one. From the stories I have read so far, the Times' basic legal stance is that deep-linking and scraping is quite an established practice (think Google News). Gatehouse has fired the usual legal salvo: unfair business practices, copyright infringement, trademark dissolution, unfair competition, false advertising and breach of contract.

Gatehouse maintains Boston.com should not be scraping and reproducing the headline and first paragraph of articles. (Sounds amazingly like what AP was claiming against the Drudge Retort, doesn't it?)

Among Gatehouse's claims is that by sending people to its sites past the home page, the Globe is helping people avoid the home page ads, which, according to Gatehouse's own story, is where the publisher makes most of its ad money (let's forget, for the moment, why that's so Web 1.0 and move on). And there are lots of other issues on which the case can be decided: copyright violation (Gatehouse says its sites have a noncommercial Creative Commons licenses), false advertising (Gatehouse says Boston.com's advertising could confound people into thinking the GH news web sites have some affiliation with the Globe, etc.)

But it's also possible a judge armed with injunction powers could open the entire can of worms about Internet linking -- you know, the one that Google News is built on, and things like Publish2 and just the general ethos of the Web, especially blogging.

For instance, one of the alternative claims invokes the trademark dilution part of the Lanham Act. It would not be difficult to see, if accepted, that having wide-ranging tentacles. For instance, at the least any blogger putting Google ads up on his or her site could be argued to be in commerce. And I could see an argument even being made against non-advertising blogs, such as mine. After all, I do gain a certain notoriety, connections and occasional speaking gigs from what is on here. (I'm not surprised, however, and expect this may just be the opening gambit in a wide range of attempts at alternative torts by those feeling aggrieved, much as alternative torts such as trespass, violation of contract, and privacy have been pressed since Times v. Sullivan and related rulings have made a frontal libel assault more difficult.)

Gatehouse can says it's being thoroughly beneficent -- that CC license lets all the nonprofits like bloggers, etc., use it. (But wouldn't that also be dilution?)

But once it enters the legal arena like this, it's out of GH's hands -- and, frankly, I happen to believe that what's good for one is good for all. (The Globe story says Gatehouse has linked to Boston.com stories, too; I've not seen it, so I can't judge its veracity. But I do know that thebatavian.com, Gateholuse's online-only site competing with the Daily News in Batavia, N.Y., freely links to Daily News stories as well as those from regional papers, such as Rochester. Full disclosure, we do the same thing at Hartsville Today using Topix.)

There's an old legal saw: Bad cases make bad law. And this has the potential to be a very bad case.

Time to oil up the amicus brief machines and get ready to produce them, methinks. I doubt this one's going to stop at the District Court level.

Additional: Mark Potts' take on the matter.
And from a commenter on Mark's post, a PDF of the complaint.
John Duncan's post drawing parallels with Newser.com also is very worth reading.
Danny Sanchez at journalistopia has a more extensive list of links to documents and other commentary. So does Damon Kiseow.
Dan Kennedy's post looking at both sides and widely cited as the place from which many others build.
A summary of some of the early deep-linking cases.
Dan Gillmor says if Boston.com is evading the electronic barricades Gatehouse put up, then shame on Boston.com.
And the Citizen Media Law Project has a detailed look at the various arguments. It has all the documents.

The CMLP also links to a previous story I missed - one in which a Chicago law firm is asserting trademark claims against a real estate news outlet that linked to the firm's Web site as part of a report on home purchases by some of the firm's partners. This one is pretty scary, too.

But none of this surprises me. The good times are over and now it's every man, woman and child for themselves online. As various organizations realize this, they will naturally try to regain perceived control.

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