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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.

7 Responses to “Is Gatehouse’s Complaint a Problem for Creative Commons?”

  1. Joseph Stanganelli says:

    Fred:

    We write on behalf of GateHouse to respond to your post on the Creative Commons home page on Friday, January 23rd, entitled: “Is Gatehouse’s Complaint a Problem for Creative Commons?” Because your post appears at least to be a statement from the Creative Commons organization, and because it misinterprets GateHouse’s positions, GateHouse wishes to correct the misunderstanding on at least a couple of points. We will not comment here specifically about the GateHouse etc. v. The New York Times Co. case. However, to the extent you or anyone is under the misimpression that the case was primarily about linking, or about deep-linking per se, which would be understandable given some of the early coverage, we refer you to the publicly filed Complaint and First Amended Complaint (both of which the EFF posts in their coverage you point out). For a summary, introductory paragraphs 1 through 4 of both complaints set forth the actual nature of the action. To the same end, we would refer you to the second point of our January 12, 2009, letter (also apparently retrieved from the Court’s docket and posted by the EFF), correcting any misstatement that the case was about mere linking, rather than the verbatim copying of content. GateHouse never contended that the mere act of linking constituted copyright infringement. That confusing spin on the case has not been accurate.

    Nor has GateHouse taken any action that should be seen as a threat to Creative Commons licensing. GateHouse is proud to have been one of the first major media organizations to recognize the value, and values, inherent in the CC licenses that the Creative Commons organization has made available. GateHouse appreciates the credit the organization and those who believe in its mission have given GateHouse for taking that early action. GateHouse continues to agree that by creating and making available free and standardized licenses to mark creative work with the precise “freedoms the creator wants it to carry”, CC upholds “the rules of copyright” for creators, while allowing others to confidently use the work within the type of license the creator and copyright holder chooses to assign; in the case of GateHouse – the Creative Commons Attribution-Noncommercial-No Derivative Works License.

    While GateHouse has freely adopted that Creative Commons license, it does so with the understanding that misattribution, commercial use and creation of derivative works violate the license, and could constitute copyright infringement. In other words, GateHouse believes that a CC license must mean what it says, and expects that the CC organization as a whole would agree with that point.

    In addition, with regard to the juncture of CC and fair use, your post takes out of context a quote from an email from GateHouse’s Howard Owens, and there implies that the email concerns his view of the application of CC and fair use to the subject matter of the lawsuit. It does not. As even the Nieman Lab post to which you cite notes, the email exchange was a “fifteen minute” reaction to an initial report about a social-networking site. (That independent site is focused on information and networking for the community of Arlington, Massachusetts.) The quote concerned an initial reaction to that site’s use of content from GateHouse’s Wicked Local Arlington website. Both your post and the Nieman Lab’s post seem unaware also that after looking into the issue, GateHouse proceeded to contact that social-networking website, but freely granted it express permission for its current use of Wicked Local Arlington content under certain mutually agreed conditions.

    Like the law of fair use, litigation and legal documents can be complex and multi-layered, and the “devil is often in the details.” Therefore, one needs to read the documents as carefully as a federal judge would. Today, GateHouse is pleased that its understanding of the relevant law concerning its right to control its content has been confirmed. To be clear, beyond and in addition to its Creative Commons licensing of its content, GateHouse respects the traditional doctrine of fair use, and has never sought to change its boundaries. GateHouse hopes all of the foregoing dispels any misconceptions like those in your post for anyone wishing to use GateHouse content under the terms of Fair Use or the Creative Commons license, or anyone wishing to link to GateHouse websites from their blog.

    Thank you for your consideration.

    Sincerely,
    Joseph Stanganelli and Michael Grygiel
    Hiscock & Barclay, LLP

  2. Hi Joseph and Michael,
    Thanks for taking the time to respond to my post. First I want to stress that the post was not meant to single out Gatehouse’s position on these matters in the case or to take sides. I did, though, want to use the suit as an opportunity to clarify a point about Creative Commons licenses that we feel sometimes goes unnoticed or gets overlooked. That is, to the extent that issues surrounding fair use may have been raised by the suit, we wanted to distinguish them as independent and worthy of consideration, separate and apart from license violation claims.

    Anyway, we are still very happy that Gatehouse is continuing to use and support CC licenses for their content, and furthermore, that Gatehouse understands the value and principals behind linking and fair use of content online. We look forward to seeing more innovative uses of technology and CC from your organization.

    All the best,

    Fred Benenson

  3. Fred:

    We fully understand, and did not feel you were taking sides in any way. We agree wholeheartedly with your main point, which you repeat in this comment, regarding the distinction between CC licensing and fair use issues. What we hope everyone understands is that legal complaints almost always set forth several distinct causes of action and since GateHouse adopted a CC it needed to affirm its terms. The Creative Commons issue was never going to be a big part of the case, and would have eventually dropped out completely unless the defense ended up arguing and asserting the license. We do not think anything about the suit was a threat to the value of CC to both copyright owners and those wishing to use their works legitimately under the CC terms. Thank you for your work.

    Joe Stanganelli

  4. Bryan Murley says:

    I have a question for Mr. Stanganelli and Mr. Grygiel, related to their response above. They write:

    Today, GateHouse is pleased that its understanding of the relevant law concerning its right to control its content has been confirmed.

    Unless I missed something, nothing in the settlement statement mentioned that NYT, et. al. were confirming GateHouse’s understanding of relevant law. Rather, it’s an out-of-court settlement in which NYT agreed to stop doing something.

    Just because someone agrees to settle a case doesn’t mean it “confirms” the other side’s arguments necessarily.

    I’m really curious about that phrasing.

    thanks.

  5. Bryan:

    We were not referring to the contents of the settlement statement. We were referring to the GateHouse Complaint and First Amended Complaint, and to the result GateHouse sought and obtained.

    Thank you.

  6. Bryan Murley says:

    Joseph:

    Thank you for your response. I find it refreshing that a major media company attorney responds to a weblog post and comments.

  7. Murat Dikyol says:

    Anyway, we are still very happy that Gatehouse is continuing to use and support CC licenses for their content, and furthermore, that Gatehouse understands the value and principals behind linking and fair use of content online. We look forward to seeing more innovative uses of technology and CC from your organization.
    http://www.techblogup.com

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