Massachusetts Federal District Court Presented With Lawsuit Involving Copying of Online Newspaper Headlines – Gatehouse Media v. The New York Times

by Lee Gesmer on January 3, 2009

Massachusetts Federal District Court Presented With Lawsuit Involving Copying of Online Newspaper Headlines - Gatehouse Media v. The New York Times

An interesting copyright case has been filed in Federal District Court in Massachusetts.

In Gatehouse Media v. The New York Times, Gatehouse Media contends that the Times has infringed its copyrights by copying the headlines and first sentences from Gatehouses’ local online newspapers, and displaying them verbatim on a Boston.com website (the New York Times owns Boston.com).

To see this in action click here and your browser should open a page on Boston.com labeled “Needham.” Scrolling down the center column of the page, you’ll see news “headlines”, followed by the first sentence of each story.

If you click on one of the headlines you should be taken to the “WickedLocalNeedham” web page and presented with the full article. If you repeat this a few times with other headlines, you’ll see that the Boston.com site has copied the headlines, and the first sentences of the stories, from the WickedLocal site, which is owned by Gatehouse Media.  Most likely, this is accomplished “automatically” by the Boston.com computers, which “scrape” the headlines and “ledes” from the WickedLocal site and “aggregate” them on the Boston.com site.

At present, the Boston.com “Your Town” site covers three towns in this way – Needham, Newton and Waltham. All three Boston.com web pages use the headlines and first sentences from articles owned by Gatehouse Media.

Is this permissible, or is Boston.com infringing copyrights owned by Gatehouse?  The answer to this question is important because news aggregation is ubiquitous on the web, and there is relatively little law on the issue.  U.S. Federal District Judge William Young, one of our federal district’s best judges, may have the opportunity to issue an important decision in this case.  And, the fact that Gatehouse Media has asked Judge Young to issue a preliminary injunction means that a preliminary decision on the merits may issue soon (assuming that case isn’t settled in the meantime).

Gatehouse Media’s preliminary injunction papers make a powerful case for a preliminary injunction, and in my judgment Boston.com will be hard pressed to defend this suit.  There is no question that the material in question is copyrightable, and that it has been copied and published on the Boston.com site.

Boston.com’s defenses are likely to be based on the fair use doctrine, but Boston.com will be hard pressed to prevail on these defenses.  Commercial use, such as Boston.com is making here, makes a “fair use” defense difficult.   And, while the “percentage” of material copied from each article may be small, the use is “qualitatively” significant, making a defense premised on de minimus copying difficult as well.  However, I expect Boston.com to argue that the fact that the content at issue is news makes it particularly appropriate for application of fair use.  I also expect Boston.com to argue that its publication not only will have no economic impact on the Gatehouse Media sites, but it will have the positive effect of driving more traffic to those sites, benefiting (rather than harming) Gatehouse Media.

I’ll publish Boston.com’s opposition memo when it becomes available and, of course, post Judge Young’s decision when it is issued.

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