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Is copying a headline and the lead sentences from a news story on a third party website you link to fair use or copyright infringement?

That's a question that a Massachusetts court will have to answer in a trial that has been scheduled to begin next week.

GateHouse Media, the publisher of 125 community newspapers in Massachusetts, has sued The New York Times Company, which owns the Boston Globe and the Boston Globe's Boston.com, alleging that The Times violated its copyright by copying verbatim the headlines and lead sentences of stories published by GateHouse Media's papers when linking to their websites.

GateHouse Media also claims that The Times is infringing on its trademark and "thereby causing confusion and mistake among users of the infringing website as to the source and endorsement of the content posted there."

This is a very important case for online publishers in the United States. As David Ardia of the Citizen Media Law Project at Harvard University noted, "This is the first case where these intellectual property issues have come to a head. If the judge was to rule for GateHouse on every point, it would have far-reaching implications for the news and information ecosystem that underlies the Web as we know it."

Indeed it would. As services that 'aggregate' content have become far more prevalent on the internet and more old and new media outlets alike adopt the practice, a debate over the fine line between fair use and copyright infringement has emerged. At what point does copying headlines and story excerpts go beyond friendly promotion of someone else's content and become theft of someone else's content? There are arguments to be made on both sides.

Supporters of the practice make a valid point when they note that links from aggregators can boost traffic for the publisher whose content is being aggregated. But there can also be no denying that many websites use aggregation to become content destinations in their own right. And when it comes to SEO, I've personally heard complaints that popular aggregators which duplicate content sometimes appear higher in SERPs than the original publishers of that content, so an argument could be made that, in some cases at least, the practice robs original publishers of SEO benefits.

Needless to say, clarification is needed in this area and hopefully GateHouse Media's lawsuit will force the United States courts to provide better guidelines. Obviously, tight restrictions on aggregation and linking would not be good as they'd impede the flow of information on the internet. At the same time, it does seem fair that publishers should have a bit more protection from the most aggressive aggregators (and abusive content scrapers).

This will be an interesting case to watch unfold.

Update: it was announced today that GateHouse Media and The New York Times Co. settled this lawsuit over the weekend prior to trial, which was to begin today. Details of the settlement have not been disclosed. Given this, the legal issues around content aggregation and linking will continue to remain murky.

Patricio Robles

Published 26 January, 2009 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

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