Friday, January 23, 2009

Another lawsuit (against NY Times and Boston.com) 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 Bostom.com News Aggregation Site”, link here. The action is taken against the New York Times, which owns Boston.com. 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 Boston.com 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.

Boston.com’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."

Update:

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

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