Friday, January 30, 2009

Gatehouse and Boston settle news scraping case

Michael Kwun has an important story dated Jan. 26, 2009, indicating that GateHouse and (owned by the New York Times) settled before going to trial Monday morning.

The link for the story is here.

The EFF story has a link to a PDF document copy of an email communicating a “binding level agreement.”

As the story says, this is a kind of rewind or an undoredo of history. Boston will stop literal newsscraping in this fashion, and Gatehouse will impose some technical impediments to prevent it. But both sites agreed that they can continue to deep link. EFF says that the details of the agreement could be counterproductive, turning away free traffic.

As I noted yesterday, “competition” in the Internet traffic business is a deceptive concept. It is not a zero-sum game.

EFF whimsically calls one of its home page features its “Deeplinks Blog.”

Thursday, January 29, 2009

In the the intellectual property world, trademark (and copyright) don't play zero-sum games; look at the "Picturehouse" story

In the Internet and media world, do multiple brands dealing with the same or similar material confuse costumers and limit profits?

The conventional wisdom holds that, and trademark law reflects that belief, but it’s probably not really true. A recent book by law professor James Boyle, “The Public Domain” (reviewed on my books blog Jan. 14) challenges conventional beliefs in all intellectual property areas when it comes to the Internet.

I’m reminded of this issue by coming across stories that Time Warner, last May, put to sleep three of its movie brands: New Line, Picturehouse (which was part of New Line) and Warner Independent Pictures. Legally, it closed down some separate companies as a business decision. But why not keep using the trademarks? It looks like “New Line Cinema” is back as a brand again, and Picturehouse (originally a venture between New Line and HBO) is too neat a concept (and a great musical-video logo) to give up. Warner Brothers ought to start reusing it as a brand for eclectic, grownup independent films even if it is no longer a separate company. (The website is still there.) The brand would tell the moviegoer what “culture” of film to expect. That is how the concept of brand is supposed to be used. There is no reason one studio can’t have multiple brands (look at Sony with Columbia, TriStar, and Screen Gems). And studios could make up brands to identify collaborations, and can reuse them later when circumstances change. It just takes paying lawyers for some paperwork. (By the way, “Warner Independent Pictures” seemed less distinguished; why not use Picturehouse for all the indie release?)

In the Internet area, we know that advertisers look at analytics for page requests, bounce rates, pass-throughs and the like. In some quarters, domain names have become a sensitive area and there is a fear that misleading names of even content “paradigms” will take business away from someone else in some kind of legally unfair competition. This has gotten to be more sensitive during the economic downturn.

But this viewpoint assumes ignorant users. Perhaps it matters for product sales, but when it comes to actual content (social and political) the issue is much more complicated. Educated users typically look for things in search engines, and well-constructed and substantial essays and blog entries usually get ranked high for free without any need to pay for placement. “Valued” visitors (those likely to be interested and open to new kinds of thinking) normally will make the effort to locate most of the relevant content, so sites do not “compete” for social content attention the way they compete to sell things.

There is perhaps an issue with free content. Many authors set up websites to sell their books and make conventional sales pitches (along with e-commerce) and find them somewhat ineffective, unless the content is really novel. Sales through Amazon and Barnes and Noble are much more convenient. Should authors offer some of their content free so that it gets read anyway? Some of the discussions by Boyle suggest that the practice does not prevent sales, and might even encourage it. Unlike most products, intellectual property (in both the trademark and copyright areas) is far from a zero-sum game; it tends to become cumulative quickly.

Friday, January 23, 2009

Another lawsuit (against NY Times and deals with deeplinks for both copyright and trademark dilution concerns

There is an important case brewing about “deep linking”, and Electronic Frontier Foundation has a major story posted today Jan. 23 by Michael Kwun, “GateHouse v. New York Times: Lawsuit Attacks News Aggregation Site”, link here. The action is taken against the New York Times, which owns The specific target for the complaint is a subdomain for Newton, MA, link here.

The full complaint is here (PDF) and deserves a reading.

The complaint claims copyright infringement in the use of banners and verbatim content, rather than links. The complain also claims trademark dilution (it seems it is using the prospective provisions of the 2006 Trademark Dilution Revision Act) suggesting that readers will believe that the had a license to display GateHouse marks in such a manner (that is, visitor “confusion”). The brands involved include Newton Tab, Daily News Tribune, and Wicked Local.

Originally, the complaint was also concerned about ad-bypassing with deep links, but that portion seems to have been dropped. In a letter (linked in the EFF story) Goodwin/Proctor says “GateHouse does not claim that the act of ‘linking’ or ‘deep-linking’ by Defendant New York Times (or any other entity) constitutes unlawful activity of any kind.”, But the letter goes on to mention “trademark dilution.”

The federal judge (Young) has scheduled a trial to start Jan. 26 and promises a timely verdict after the arguments and evidence. It’s unusual for a case like this to go to trial.

There is real concern here for publishers, and possibly downstream liability if Section 230 gets weakened, and also for blogger insurance. Although the plaintiffs seem to be claiming that the Boston site is doing unreasonable copying beyond Fair Use, it may be difficult to draw the line in the future, particularly on the trademark questions. Remember the 2006 Trademark Dilution law was criticized on the idea that there were many gray areas that could invite abuse, although there are supposed to be defenses based on non-commercial use and a quasi “fair use” that I discussed on this blog June 28, 2007.

Stay tuned. This case is important. It does seem to remind us of the Associated Press case, which I discussed on my main blog June 2008 here.

There have been other cases, such as Google’s use of thumbnails, and many other companies use similar models for scraping news, such as Techme.’s own account of the litigation is by Robert Weisman, dated Jan. 23, “Lawsuit over website links in spotlight: Copyright violation or fair use to be decided”, link here.

I want to ad that in my own practice, I generally do not reproduce images or content (other than article titles) in links in my blog postings. I try to put as much of my own spin on the content as possible, sometimes referring to personal incidents, even though that practice has its own potential weaknesses for criticism.

There are other potential questions, I suppose, in my approach to blogs. Do television show and movie reviews create a problem if they provide spoilers or simply reproduce as a rewrite the program? (Paraphrasing itself presents interesting questions sometimes.) But again, I usually try to indicate why the media even is important. For example, some of Dr. Phil's programs are important because they tackle gender identity issues, or Internet "online reputation" issues and lead to further discussion of the underlying issues online. Even movies (like "A Broken Life") present ethical quandaries themselves worthy of add-on discussions, as does even opera, for example, as "Pagliacci" also covers the problem of "reputation" in "fiction." My take, in either trademark or copyright, "fair use rocks."


EFF has a story on Jan. 26 to the effect that the parties have settled. More details are forthcoming here.

Monday, January 05, 2009

Restaurant case illustrates many trademark issues; Business Week has slideshow on "David v. Goliath" cases

Stacy Perman reported (in Business Week) a complicated restaurant trademark case in Business Week back on May 30, 2008, “Wolfgang Puck v. Wolfgang Zwiener: two restaurant chains with similar names are about to square-off in a trademark infringement showdown,” link here.

The fact pattern is quite complicated, and involves questions such as geographical concentrations (in this case, New York and Los Angeles) and the use of personal names as marks. The article goes on to discuss the underlying philosophical and ethical issues in trademark law: the fact that businesses feel fiduciary pressure to protect their brands, but the tendency is to crowd out small businesses, often who do not have the resources to fight what seem like morally legitimate positions, even with respect to the newer problem of prospective infringement or dilution in view of the 2006 law.

The article leads to a “slide show” of “David v. Goliath” trademark cases, here. These include Vuitton, AOL and NavQuest, Starbucks and Conga, and the Lance Armstrong Foundation.