Things are moving quickly in the GateHouse Media v. New York Times Company lawsuit we posted about (here, here) before the holidays.  Judge Young of the United States District Court for the District of Massachusetts decided to combine GateHouse's motion for a preliminary injunction with a full trial on the merits and initially set the hearing for today.  By agreement of the parties, the court extended the trial date, which will now begin "on or after January 26, 2009."  Despite the delay, this still means a frenzy of activity for the lawyers, with fact and expert discovery to be completed in the next 2-3 weeks -- a refreshing departure from the ordinarily glacial pace of litigation in our civil justice system.  

This expedited schedule suggests what we might have guessed -- fundamentally the dispute is about the law rather than the facts.  Among other potentially important rulings, Judge Young may have to decide whether aggregating headlines and ledes from other websites constitutes copyright infringement or fair use, and whether linking back to a source website for purposes of attribution can be trademark infringement.  Needless to say, the answers could have serious implications for the future of online media. 

Adding a layer of complexity, the court may not have subject-matter jurisdiction to decide the copyright claims (at least for the time being). GateHouse filed applications for copyright registration of the articles in question with the U.S. Copyright Office on December 19, 2008, but has not yet received certificates of registration.  Registration is a prerequisite to filing a copyright infringement action, see 17 U.S.C. § 411(a), but the statute is not clear on whether a pending application for registration is sufficient.  Some federal courts say "yes," some say "no," and the First Circuit Court of Appeals has not decided the issue.  In the parties' joint motion to set a revised schedule, the New York Times Company indicated that it "takes no position on this issue given the current state of the law," but both parties are anxious to deal with the question before going through the effort and expense necessary to prepare for trial.  There was a status conference today at which the parties planned to take up the issue, so maybe we'll have some news on this soon.

For more information, see our legal threats database entry GateHouse Media v. The New York Times Company.