An interesting copyright case has been filed in Federal District Court in Massachusetts.
In Gatehouse Media v. The New York Times, Gatehouse Media contends that the Times has infringed its copyrights by copying the headlines and first sentences from Gatehouses’ local online newspapers, and displaying them verbatim on a Boston.com website (the New York Times owns Boston.com).
To see this in action click here and your browser should open a page on Boston.com labeled “Needham.” Scrolling down the center column of the page, you’ll see news “headlines”, followed by the first sentence of each story.
If you click on one of the headlines you should be taken to the “WickedLocalNeedham” web page and presented with the full article. If you repeat this a few times with other headlines, you’ll see that the Boston.com site has copied the headlines, and the first sentences of the stories, from the WickedLocal site, which is owned by Gatehouse Media. Most likely, this is accomplished “automatically” by the Boston.com computers, which “scrape” the headlines and “ledes” from the WickedLocal site and “aggregate” them on the Boston.com site.
At present, the Boston.com “Your Town” site covers three towns in this way – Needham, Newton and Waltham. All three Boston.com web pages use the headlines and first sentences from articles owned by Gatehouse Media.
Is this permissible, or is Boston.com infringing copyrights owned by Gatehouse? The answer to this question is important because news aggregation is ubiquitous on the web, and there is relatively little law on the issue. U.S. Federal District Judge William Young, one of our federal district’s best judges, may have the opportunity to issue an important decision in this case. And, the fact that Gatehouse Media has asked Judge Young to issue a preliminary injunction means that a preliminary decision on the merits may issue soon (assuming that case isn’t settled in the meantime).
Gatehouse Media’s preliminary injunction papers make a powerful case for a preliminary injunction, and in my judgment Boston.com will be hard pressed to defend this suit. There is no question that the material in question is copyrightable, and that it has been copied and published on the Boston.com site.
Boston.com’s defenses are likely to be based on the fair use doctrine, but Boston.com will be hard pressed to prevail on these defenses. Commercial use, such as Boston.com is making here, makes a “fair use” defense difficult. And, while the “percentage” of material copied from each article may be small, the use is “qualitatively” significant, making a defense premised on de minimus copying difficult as well. However, I expect Boston.com to argue that the fact that the content at issue is news makes it particularly appropriate for application of fair use. I also expect Boston.com to argue that its publication not only will have no economic impact on the Gatehouse Media sites, but it will have the positive effect of driving more traffic to those sites, benefiting (rather than harming) Gatehouse Media.
I’ll publish Boston.com’s opposition memo when it becomes available and, of course, post Judge Young’s decision when it is issued.
The 11th Circuit has ruled on a somewhat obscure but interesting issue of federal jurisdiction in copyright cases.
The Declaratory Judgment Act allows one who has been threatened with a suit to file suit first, and ask for a “declaration” of non-liability. In other words, the declaratory judgment makes one who fears becoming a defendant the procedural plaintiff. The roles of “plaintiff” and “defendant” are reversed, but the underlying issue remains the same. Declaratory judgment is simply a way that a threatened party who is unwilling to live with the risk of a lawsuit at some uncertain point in the future can force the issue.
However, the Declaratory Judgment Act is procedural; it does not give rise to federal court jurisdiction. This can create a problem for the declaratory judgment plaintiff, as demonstrated in the 11th Circuit case.
Registration with the U.S. Copyright Office is a jurisdictional prerequisite to a copyright infringement suit – no registration, no jurisdiction.
What if you are threatened with copyright infringement, but the owner of the work who has threatened you has not registered the work?
According to the 11th Circuit, you’re out of luck – the federal courts lack jurisdiction, and you cannot seek declaratory judgment. And, since the federal courts have exclusive jurisdiction over copyright claims you can’t seek relief in state court either. You just have to wait until the party threatening you registers its copyright before you can move against it (or it can move against you).
The case is Stuart Weitzman, LLC v. Microcomputer Resources, Inc.
So, you’re unhappy in your law firm job? Ready to move on to a job that has lots of responsibility but doesn’t require hourly billing and client headaches? A job that puts you in close proximity to the President and his closest advisers? You’d like a job that provides security and good benefits? A federal pension to offset the losses in your 401K account?
Well, you can thank President Bush for creating this exciting new job when he signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” last week. The legislation calls this the “short title” of the law. Yes, Congress does have a sense of humor. We’ll call the new law PRO-IP, which is even shorter, and tells you almost as much about the law as the slightly longer title (but still short, no disrespect meant) assigned by Congress.
Copyright lawyers always get excited when the Copyright Act is amended, but as I suggested above, there is even greater cause for excitement this time: the new law creates the position of “International Intellectual Property Enforcement Coordinator.” This is a mouthful, so we’d prefer the term “IP Czar” (or perhaps simply “the Czar” to the Czar’s subordinates when they’re talking about her ourside of her hearing).
This is a great job. You get to work in the Executive Office of the President, (the “EOP” as its known to those “beltway insiders”), and maybe even work in the White House itself, or at least the Executive Office Building. This is a “with-the-advice-and-consent-of-the-Senate” job, so your friends and family may get to see you interrogated by the Judiciary Committee on C-SPAN.
And, should you be confirmed (assuming you are not “Borked” or subject to a “Hi Tech Lynching” or anything along those lines), here’s a “general” description of your job, as described in the statute:
(1) IN GENERAL- The [IP Czar] shall–
(A) chair the interagency intellectual property enforcement advisory committee established under subsection (b)(3)(A);
(B) coordinate the development of the Joint Strategic Plan against counterfeiting and infringement by the advisory committee under section 303;
(C) assist, at the request of the departments and agencies listed in subsection (b)(3)(A), in the implementation of the Joint Strategic Plan;
(D) facilitate the issuance of policy guidance to departments and agencies on basic issues of policy and interpretation, to the extent necessary to assure the coordination of intellectual property enforcement policy and consistency with other law;
(E) report to the President and report to Congress, to the extent consistent with law, regarding domestic and international intellectual property enforcement programs; and
(G) carry out such other functions as the President may direct.
Well, I’ve got to run now and revise my resume, I mean delete some of the anti-government stuff I said on Facebook, errrrr… get some of those copyright law articles I’ve written updated and on the web, I mean ah, yes, call back a client, that’s it!
(p.s. – needless to say, this law contains a lot that’s worth serious discussion, and I’ll return to it in more detail later. You betcha.)
Whether a U.S. work is protected by U.S. copyright is often a difficult question to answer. It can depend on factors such date of first publication, whether the work was published with a copyright notice, whether the copyright was renewed, whether the author is living or dead and, if dead, when the author died. Technology to the rescue!, sort of ….
Click on the graphic below to go to the American Library Association “Copyright Advisory Network” website where you can use the “digital slide rule” created by Michael Brewer (ALA member from the University of Arizona Library) to find the answer. Drag the red arrow up and down beside the various data points and see what the boxes to the left say (yes, no, maybe). Of course, “maybe” is the answer far too often, requiring the user to click the asterisk, read the explanation, do more research and …. oh well.