by Lee Gesmer | Jan 6, 2009 | Copyright, Courts
When I discussed the copyright case Gatehouse Media v. The New York Times over the weekend I hadn’t reviewed the court docket, and hadn’t been aware that Judge William Young had pulled the trick that he is famous for (at least locally): when a party requests a preliminary injunction, he responds by ordering an expedited trial. And I do mean expedited.
The case was filed on December 22, 2008.
Docket entry 13, issued the same day, states in relevant part (cleaned up a bit for readability):
Electronic Clerk’s Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/22/2008 re MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Gatehouse Media Massachusetts, Inc.
The Court rules denying Motion for TRO; because the matter will be collapsed with a trial on the merits. The Court is reserving ruling on Motion for Preliminary Injunction; ( Jury Trial set for THE RUNNING TRIAL LIST AS OF 1/5/2009 09:00 AM before Judge William G. Young.); Counsel are to cooperate with one another re: discovery. Counsel are to contact the clerk as to the schedule. A 4 week jury trial is scheduled for Jan 5 at this time. If counsel settle the case, a phone call is all that is necessary.
Translation – be ready for trial at 9:00 a.m. Monday, January 5, 2009, nine business days after suit was filed. Maybe we’ll reach you, maybe we won’t (that four week case may settle), but you’d better be ready. Oh, and enjoy the two holiday weekends between now and then.
This is classic Judge Young, and he’s been doing it from the first day he was appointed to the federal bench over 20 years ago.
The moral: if you file a suit in federal court and you are seeking a preliminary injunction, be prepared for the risk that you might draw Judge Young, in which case, be very prepared. A super-expedited trial like this favors the defense, since the plaintiff will have great difficulty preparing for trial in two weeks. Assuming you don’t want to be prepared for trial on the day you file suit, the way to avoid this, in this district, is to file suit and see what judge you draw. If you draw Judge Young, you can decide whether you want to file for a PI and risk an immediate trial. There’s no law that states that you must file your PI motion simultaneous with the complaint, but filing the PI motion simultaneous with filing suit deprives the plaintiff of that choice.
In this case, Gatehouse Media could have adopted a different strategy, as follows:
- File suit and see what Judge is assigned to the case. If Judge Young is assigned, do not file a preliminary injunction motion, knowing that this risks an immediate trial.
- As you publish your local news each week, file copyright registrations for each issue. This is inexpensive, and so simple it could be done by an intern or paralegal. If Boston.com adds towns (beyond Newton, Needham and Waltham), register the weekly publications for those towns as well.
- By registering the copyrights within three months following publication, Gatehouse Media would be entitled to recover statutory damages for each publication, as well as attorney’s fees incurred in prosecuting that infringement. Statutory damages may be as great as $150,000 per infringement in cases of “willful” infringement – that is, $150,000 per publication. If Boston.com is aggregating and publishing the Gatehouse Media news for Newton, Needham and Waltham each week, Boston.com is looking at potential damages of as much as $450,000 per week. By the time the case goes to trial in the ordinary course (say a year), Boston.com is risking damages in the tens of millions of dollars. Would that financial risk be likely to lead to a settlement favorable to Gatehouse Media? You betcha!
by Lee Gesmer | Jan 5, 2009 | Courts
Trials.
We love them, we hate them. If you’re a client, you really hate them. Or at least you should.
There are moments of high drama, but the vast majority of trials are as boring as watching grass grow. Even trials that attract the prurient interests of the public (think OJ or Spector), that force the world to watch with morbid fascination, are, for the most part, boring. Why do you think that Court TV shows only the “highlights”?
Nevertheless, if you take an important trial and boil it down to its essence – take out all the tedium, the voir dire, the endless sidebars and evidentiary disputes, the scientific/technical testimony that is often incomprehensible, the marginal witnesses that everyone in the courtroom dozes through — and leave just the heart of the the case, what remains can be fascinating.
Oscar Wilde, 1895
Law Professor Douglas Linder has done just that at his site, Famous Trials.
There you can read about trials ranging from Socrates in 399 B.C., to the 9/11 trial of Zacarias Moussaoui in 2006.
McMartin Pre-School, 1987
As the trials move into the so-called modern era, the coverage expands in detail. The site contains many trial transcript excerpts, multimedia files, and more. It is truly a labor of love, and a service to the world. Or at least those few who are interested in this kind of stuff. Check it out here.
by Lee Gesmer | Jan 3, 2009 | Copyright
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.
