Website Sues NY Times For Linking To It

from the 1996-is-calling dept

Tue, Dec 23rd 2008 6:08am — Mike Masnick

Back in the mid-90s there were a series of lawsuits over "deep linking" practices, where people who didn't quite understand how the web worked would sue other sites for linking to them without permission. We still see this happen occasionally, such as with the Associated Press's ridiculous assertion that various other sites shouldn't link with a headline in a snippet from an article. However, it appears that some smaller news organizations are just as clueless about the internet as well. Reader Ben writes in to point out that GateHouse Media, a publisher of some local free news publications in Massachusetts is suing the NY Times for linking to them. The full complaint shows a near complete misunderstanding of how the internet works. You can read it here:

Basically, the big complaint is that Boston.com (which is owned by the NY Times) has a local section, where it links to GateHouse publications. It does so in ways that are clearly fair use. It includes the headline and the very first sentence of the GateHouse articles, with a link to the full version. This is driving traffic to GateHouse's publications and clearly not taking anything away from GateHouse. But GateHouse claims this is copyright infringement. Furthermore, GateHouse claims that there is trademark infringement because Boston.com accurately shows where the content originally is from and tells you what site the link goes to. In other words, it's helping to promote GateHouse's properties. GateHouse, instead, claims this is blatant trademark infringement. Even more ridiculously, GateHouse claims that this effort by Boston.com, which helps get it more attention and drive more traffic to its properties is somehow unfair competition. I only wish we had competition like that.

Perhaps most interesting of all, GateHouse is charging the NY Times with breach of contract, because (of all things) GateHouse uses a Creative Commons license on its content -- though it uses the Attribution, Non-Commercial, No Derivatives license -- and it claims that Boston.com's use is commercial, and thus a contractual violation. This highlights the problem Creative Commons has with its non-commercial licenses. It's pretty clear the intent of such licenses is to prevent a company from reselling the works. But when it's being used to directly drive more traffic to the original site, it's difficult to see how any sane person would see that as a violation of the intent.

Either way, the end-result of all of this is that other websites have already come to the conclusion that it's just not worth linking to GateHouse sites at all. Consider it a stupid lawyers tax. Suing people for sending you traffic has to be, perhaps, the most braindead business strategy around, these days.

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Filed Under: copyright, deep links, news, trademark, websites
Companies: gatehouse media, ny times

30 Comments

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Anonymous Coward, 23 Dec 2008 @ 6:11am

Good Grief Charlie Brown!
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Anonymous Coward, 23 Dec 2008 @ 6:29am

They surely won't get re-listed on NYSE this way
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Anonymous Coward, 23 Dec 2008 @ 6:40am

Two Words
Money Grab!
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Anonymous Coward, 23 Dec 2008 @ 7:01am

"Defendant is also infringing on Gatehouse's trademark rights by using .... marks in connection with the Infringing Website, thereby causing confusion and mistake among users of the Infringing Website as to the source of origin and endorsement of the content posted there..."

That is great. How could clearly showing the source cause confusion about the origin? Doesn't that do absolutely exactly the opposite? Also, the only endorsement that could be inferred here really is that the defendant endorses the Plaintiff, not the other way around!

My last comment is, why in God's name are they capitalising "Infringing"? Is it supposed to add impact or make it stand out. I didn't know we were supposed to capitalise adjectives. I suppose the Quick Brown fox jumps over the Lazy dog now! Not only dumb but illiterate too.
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Ron (profile), 23 Dec 2008 @ 7:09am

Morons
See, the morons are everywhere
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Greg, 23 Dec 2008 @ 7:12am

Massachusettes
Well, it IS in the state of MA, and Money Grab is what they know. I think the people at Gatehouse are politicians in the making, or ones that failed at running for office so they decided to start up a free website/paper.
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shmengie, 23 Dec 2008 @ 7:22am

gatewho?
"hi, this is boston.com. i apologize for linking to your site. i guarantee you, you will never see citygate mentioned anywhere, in any of our properties, ever again, ever. sorry for the mix up. have a great day!"
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Cybertelecom, 23 Dec 2008 @ 7:27am

Blockshopper
They must have read Jones Day v Blockshopper and got excited. At some point we need some good solid caselaw that can stop these lawsuits dead in their tracks (oh wait, we have 2 decades of caselaw that say its legal to link). The post comments on the creative commons license. Of course, the creative commons license does not trump the law - the law being fair use. The creative commons may give specific permissions for how to use the work pursuant to that authorization - but fair use still stands and the work can be used outside of the creative commons and pursuant to fair use.

I do think the answer is simple. For any darwin-award winner that does not want to be linked to, put them on a media blacklist - and NOBODY ANYWHERE link to them. That will solve these lawsuits real easy.

At one point do we need Congress to step in with clarifying copyright and trademark language to stop this stuff.
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Just Another Moron in a Hurry (profile), 23 Dec 2008 @ 7:45am

Commercial Use
I could sort of see an argument for the non-commercial clause being broken. The boston globe is a commercial product, and if they link to quality material, then that improved their reputation, which increases their readership.

But even so, the point is that this can only help gate house with more awareness and more readers.
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DanC, 23 Dec 2008 @ 7:56am

Re: Commercial Use
I could sort of see an argument for the non-commercial clause being broken

But the creative commons license doesn't matter, as using a headline and single sentence of the original article is clearly fair use.
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Cheese McBeese, 23 Dec 2008 @ 8:03am

I think we should vote these morons off the island.
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Anonymous Coward, 23 Dec 2008 @ 8:22am

Re:
"Infringing Website" is capitalized because it is being used as a proper noun. The complaint cannot state the name "Boston.com" instead must say "Infringing Website".
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Anonymous, 23 Dec 2008 @ 8:40am

This action is SO STUPID that there has to be more to it. There's some scam, some back end, some loophole that we don't know about which motivates this action. I am envisioning an insane wealthy man who left all of his fortune to GateHouse Media with the stipulation that they never be associated with the New York Times. Or an insane senior editor at GateHouse who believes that the NYT is controlling his brain through anchor tags. Something insane, in any case.
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Anonymous Coward, 23 Dec 2008 @ 8:44am

Re: Commercial Use
I could sort of see an argument for the non-commercial clause being broken. The boston globe is a commercial product, and if they link to quality material, then that improved their reputation, which increases their readership.

That's pretty tortured logic. How does a headline, a single sentence and a link to another site increase readership? Do you come to this site to check out the links? Sheesh, are you the lawyer for Gatelouse? (Yes, I purposely misspelled the name -- why help these bozos in the search engines?)
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Anonymous Coward, 23 Dec 2008 @ 8:48am

is that still in fashion?
i know everything retro is in fashion again but why this?
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Overcast, 23 Dec 2008 @ 8:59am

You know what they need?

Like the 'do not call' list - they need a 'do not link' list.

That way, people can be SURE to never link to their site. NO sites link to them; including search engines - no people end up finding them, problem solved.

Give it 90 days or 180 days and the web server has a grand total of 3 hits from mistyped URLS and it'll go away.

So in the case of the web - if you ignore it, it will in all probability - go away.

If I Google the company now - I bet I'll find a link too - but I wouldn't want to get on their server without their written permission, so I'll stay away.
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tm, 23 Dec 2008 @ 8:59am

Commericial Use
It's definitely commercial use, no doubt. They are using it for traffic on their own site, making money from ads, etc. etc. I don't see a downside really to GateHouse, but their content is being used commercially, even though it's so small it, in my opinion, is fair use. But wait, it's still commercial, they are not parodying it. So maybe it's not fair use.

Yeah, this is not a bad thing for GateHouse, but that still doesn't mean that what Boston.com is doing isn't wrong.
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Anonymous Coward, 23 Dec 2008 @ 9:00am

Re: Re:
Ahh thanks for the clarification. The subtleties of the legal process are, I admit, a little lost on me! I still think it unnecessary, but many standards often are!
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DanC, 23 Dec 2008 @ 9:42am

Re: Commericial Use
But wait, it's still commercial, they are not parodying it. So maybe it's not fair use.

Commercial use does not invalidate a fair use argument. The first factor in the fair use test covers this - the use is both informational (favors Boston.com) and commercial (favors GateHouse).

The Four Factor Test

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

Yeah, this is not a bad thing for GateHouse, but that still doesn't mean that what Boston.com is doing isn't wrong.

Boston.com is linking to another website, giving proper credit for where the article is hosted, and is using an incredible small portion of the original material. The first factor in the fair use test is basically tied, the second factor may favor Gatehouse slightly, but factors 3 and 4 are strongly in favor of Boston.com. It isn't wrong at all - it's exactly what fair use is intended to allow.

Gatehouse apparently doesn't understand that the internet is built websites linking to each other. If they don't want people linking to their material, they honestly shouldn't have it available on the internet.
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Anonymous Coward, 23 Dec 2008 @ 10:13am

The way I see it
Boston.com is attempting to provide a secrice to their readers. They are recognizing that someone else has articles that their readers will be interested in and attempt to get them to leave Boston.com to read an article at gatehouse. This likely increases readership for Boston.com because they are acting like a news aggregator and pointing its readers to other valuable places on the internet.

The effect is two-fold:
1. Boston.com has happier readers who know more about the things they are interested in
2. Gatehouse gets traffic which is what every website needs

I say that Gatehouse either needs to learn to appreciate links (I'd love if NY Times affiliates linked to my blog) or ask them to stop. Boston.com was very much in the right here, but should aknowledge that Gatehouse doesn't want links and stop linking to them.
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Todd, 23 Dec 2008 @ 10:39am

Re:
Like the 'do not call' list - they need a 'do not link' list.

This problem is already solved. They shouldn't be putting their content on the internet if they don't want it available to the public.
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Dallas IT Guy, 23 Dec 2008 @ 10:47am

Gatehouse could easily fix this
If Gatehouse wants to have a web site that doesn't allow unlicensed access, it's a fairly simple to check for the referring web site before granting access to a page, and refuse access to visitors from other sites.
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Vincent Clement, 23 Dec 2008 @ 12:34pm

Re: Commericial Use
Commercial use and fair use are not mutually exclusive. Contrary to popular mis-belief copyright law does not prevent you from making money through fair use.

Newspapers publish reviews of books, movies, music, live theatre, and so on. Fair use. However, the newspapers use those reviews to attract readers. Commercial use.
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Mark Regan, 23 Dec 2008 @ 2:04pm

I Hired That Same Lawyer
The Gatehouse lawyer is a smart guy after all. I hired him to recommend an investment banker, and he told me that he had all his retirement money in Bernie Madeoff's competent hands, and recommended I do the same.

Based upon this lawsuit and the fact that he sounds so confident and erudite, I am think about following his advice and putting my two cents of retirement funds in the care of Mr. Madeoff. He assures me I'll be quintupling my money each year if I stick with him. What a deal. I love associating with such smart lawyers and bankers. Doesn't my experience just restore your confidence in our good old American system of Capitalism?
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Darrell Todd Maurina, 23 Dec 2008 @ 6:37pm

Gatehouse's efforts to close the online gate
I'm a former Gatehouse reporter near Fort Leonard Wood in Missouri who now runs an online newspaper. I've cited your article in my own opinion piece on this GateHouse lawsuit. I can't believe this lawsuit actually got filed.

Here's my own opinion piece on the lawsuit:

http://pulaskicountyweb.com/smf/index.php?topic=13450.0

Darrell Todd Maurina
Pulaski County Daily News
www.pulaskicountydaily.com
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Anonymous Coward, 23 Dec 2008 @ 7:31pm

I wonder if Gatehouse is setting up its own lawyers for a malpractice suit.
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Kiss Me Stace, 2 Jan 2009 @ 8:37am

What? NYT links??? They didn't link to me! I should sue them for THAT! Haha.
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ziya, 8 Apr 2009 @ 1:25am

NSD
NSD (http://www.nsdtech.ae) is acronym of Network & Security Solution Software Solution Data Recovery Solution, Dubai UAE based IT Solution provider LLC (Limited Liability Company
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eas system, 17 Apr 2009 @ 1:17am

Newspapers publish reviews of books, movies, music, live theatre, and so on. Fair use. However, the newspapers use those reviews to attract readers. Commercial use.
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jaspreet, 17 Nov 2012 @ 9:07pm

blog comment
waxing ny and waxing nyc,body waxing nyc

This has been very helpful.
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