So it ended before it began. GateHouse v. New York Times—the copyright and trademark infringement case filed by local-news behemoth Gatehouse Media against the NYT-owned Boston.com and its hyper-local Web sites (a suit that, among other things, challenged common assumptions about the definition of intellectual property in a link economy)—was scheduled to go to trial this morning. Instead, it was settled out of court in a last-minute agreement.
The details of the settlement are thus far unknown; I’ll update this post once we know more.
Update: Actually, as MediaNation’s Dan Kennedy points out, the case is moving toward settlement. Kennedy obtained the text of this morning’s written order, issued by Judge William Young: “IT IS ORDERED that this action is hereby dismissed without cost and without prejudice to the right of any party, upon good cause shown, to reopen the action within thirty (30) days if settlement is not consummated.”
So it’s possible, Kennedy notes, “that this isn’t over yet.”
Update II: Nieman Lab’s Josh Benton got the text of the settlement agreement, available here. I’m reading it now.
Update III: Okay, my first read on this is that the Times Company is conceding quite a bit to GateHouse in the settlement. Not only is it basically agreeing to stop using headlines and ledes from GateHouse’s Wicked Local Web sites—the bulk of GateHouse’s beef against Boston.com—but it’s also agreed to remove those headlines and ledes retroactively: “Defendants shall take reasonable commercial steps to ensure that all headlines and ledes orginally published by GateHouse that are or have been existing and displayed on boston.com’s yourtown websites, and all related source attributions, are removed from those websites and any related archives by no later than March 1, 2009.”
Boston.com will also remove all GateHouse RSS feeds from the aggregation tool it’s been using to copy GateHouse material to its Web sites.
The most interesting part of the settlement, though, involves section 1: the agreement that “GateHouse will implement one or more commercially reasonable technological solutions…intended to prevent Defendants’ copying of any original content from GateHouse’s websites and RSS feeds…which Defendants shall not directly or indirectly circumvent.”
I’m assuming this aspect of the settlement addresses the portion of the GateHouse complaint alleging that Boston.com circumvented its security measures to copy GateHouse material to its Web sites. Per the complaint,
Lacking any cooperation from defendant, GateHouse implemented certain electronic security measures on Wicked Local, to prevent users with a certain Boston.com Internet Protocol (”IP”) address from scraping content from GateHouse’s website. Plaintiff’s security measures did not deter defendant in the least — defendant posted original content to the Infringing Website the very next day after they were installed.
As Dan Gillmor noted in his extensive coverage of the suit,
If Boston.com’s Your Town crawlers/scrapers are going around the technological blockades, that strikes me as — at the very least — poor behavior. I don’t know whether it’s legal, but it’s not honorable. Boston.com should take the hint and stop pointing to GateHouse.
Make no mistake: I believe that turning away page views that come from other sites is, in the end, a mistake. Even so, GateHouse should have the right to make that mistake.
The suit’s settlement would seem to validate Gillmor’s view. But its specificity about the barrier—once it’s put up, you can’t violate it—would also seem to validate, overall, the “shared and shared alike” aspect of the Web: “Notwithstanding the above prohibitions,” the settlement says, “nothing shall prevent either party from linking or deep-linking to the other party’s websites, provided that the terms and conditions set forth in this Letter Agreement and in the Definitive Agreement are otherwise fully complied with.”
But it’s worth remembering that, because all of the above has been determined out of court, the agreement won’t have the capacity to set precedent for similar cases that might deal with linking, copyright, etc. So the settlement’s impact, at the moment, is theoretical more than anything else.Megan Garber is an assistant editor at the Nieman Journalism Lab at Harvard University. She was formerly a CJR staff writer.