Oops. Internal E-mails Undercut Litigation Position on Fair Use Issue

Lawyers, of course, are well aware of the need to exercise discretion in internal communications that could later come to light in litigation.

But an exchange of e-mails among executives at the GateHouse newspaper chain is now an issue in federal fair-use litigation with the Boston Globe. The exchange and opposing counsel’s take on the exchange is an instructive example of how such communications can create problems, reports the Nieman Journalism Lab.

GateHouse is seeking to prevent the Globe from reproducing on the Boston newspaper’s own website the headlines and first paragraphs of Gatehouse articles (which are linked by the Globe site to the actual Gatehouse articles). However, Howard Owens, the director of digital publishing for GateHouse, says in an Oct. 2, 2008 e-mail to an executive at a weekly newspaper in the chain that a similar aggregating arrangement by an outside publication probably would survive a legal challenge because it would likely be considered fair use.

As Owens puts it in the e-mail: “They would probably win on that one.”

Now the e-mail discussion is being brought up in the Globe litigation (which also involves the New York Times Co., because it owns the Globe).

“The situation discussed in Owens’ email doesn’t directly involve the Globe,” the Nieman blog recounts in a post this morning, “but NYT Co.’s attorneys at Goodwin Procter seized on the e-mail in its filing on [Jan. 16]. ‘GateHouse’s own executives believe the basic linking practices at issue here are not only unremarkable but perfectly permissible,’ the company argued.”

The case, GateHouse Media Massachusetts I, Inc. v. The New York Times Co., is in federal district court in Boston.

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