Lawyer’s Fair Use GateHouse View Makes Business Sense

The most interesting resource I found in Nieman Journalism Lab’s comprehensive coverage of the Gatehouse-New York Times Co. squabble over fair use is this link to a report filed on GateHouse’s behalf (PDF) by UCLA law professor Douglas Gary Lichtman.

Lichtman frames the larger goal of copyright law as the encouragement of useful new stuff that serves a purpose in society. That objective holds important implications for the ethical, legal, journalistic and commercial dimensions of fair use.

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In this case, GateHouse objected to use of its content on the Times Co.’s new hyperlocal sites serving suburban Boston, specifically the presentation of headlines and ledes from GateHouse’s sites on

Monday’s settlement, in which the Times Co. agreed to stop doing that, is unclear in a number of respects

All the more reason, for now, to focus on Lichtman’s argument. Yes, Lichtman is a hired gun in the case, and Times Co. lawyers dismissed his report as an inappropriate effort to substitute his views for those of the judge. But I haven’t seen much persuasive challenge to his main points.

He runs through the four provisions of fair use (nature of the use; nature of the work; amount and substantiality of the work used; effect of the use on market value). He notes that fair use decisions are a matter of cumulative interpretation as opposed to specific regulation. The idea is to consider all four areas of the law and draw reasonable conclusions. My take-aways from his 31-page report:

  • If the use of the original work is primarily commercial (on sites designed to generate revenue, for example), you need to approach any re-use with particular care. There’s no problem with linking to such material. The potential violation of fair use arises when you re-publish a significant portion of the original work without “transforming” it sufficiently to create something new. And that, Lichtman argues, involves bringing “something of value to society, rather than being merely duplicative of that which society already has.”

  • The more creative the original work is, the more careful you need to be about using it.
  • It’s hard to know how much of the original content represents too much on the substantiality meter, but Lichtman argues that a starting point would involve discerning what “would-be readers were likely most interested in seeing.”
  • The issue of potential damage to market value is especially critical in a hyperlocal environment, partly because the potential advertising base is so limited. Lichtman argues that if your re-use is aimed at the same audience and makes it more difficult for the creator of the material to make a buck on it, you could be in trouble with fair use.

All of which makes sense from the point of view of content creation, otherwise known as good journalism. If a competitor provides a valuable resource, link to it without copying it. Figure out a way to improve on it. Advance the story. Create something new enough and useful enough to sell.

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