Zachary Seward

Is Gatehouse’s Complaint a Problem for Creative Commons?

Fred Benenson, January 23rd, 2009

You may have heard about Gatehouse Media suing the New York Times Co. over the linking of Creative Commons licensed news stories on the Times’ Boston.com. Zachary Seward over at the Nieman Journalism Lab has been covering the various developments of the case and most interestingly, an e-mail from Howard Owens (whom we highlighted in our original post on Gatehouse media adopting CC) where he points out that:

… a few graphs and a link back to our site isn’t a Creative Commons issue, but a fair use issue, and they would probably win on that one.

Today, however, Seward posted a piece on how CC’s NonCommercial license plays into the case. Featuring an interview with David Ardia of The Citizen Media Law Project at Harvard’s Berkman center, Seward suggests that the issues CC is currently investigating surrounding NonCommercial complicate the case.

We respectfully disagree.

Put simply, we do not believe that CC licenses, or our research on the definition of NonCommercial are relevant to Gatehouse’s complaint. The real debate is about fair use — just as Howard Owens pointed out in his e-mail to other Gatehouse staff. Creative Commons licenses do not prohibit fair uses of CC licensed content. This means that a NonCommercially licensed work (such as Gatehouse’s) can be used commercially so long as the use is fair.

Is The NY Times Co. using Gatehouse’s content fairly by linking to it using snippits and headlines? We’ll leave that up to the courts to decide, but if the famous Perfect 10 v. Google Inc. case is any indicator, condensing and linking content by third parties has been upheld as a fair use in court already. There are obviously differences between the Perfect 10 case and this one, but if the Gatehouse claim were upheld, it would do far more damage to fair use than Creative Commons ever could.

The EFF reports that the trial is set to begin on Monday. Watch their page dedicated to the case for further developments.

UPDATE: The suit has been settled, download the joint statement here. Also, it should be noted (as Gatehouse counsel has pointed out below), that Howard Owen’s original e-mail was not in fact referencing the NYTimes’ usage of Gatehouse CC’d content, but another party’s use of it.

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