We’ve been looking at the GateHouse/New York Times Co. linking dispute quite a bit recently. (See our previous posts on the case here and here.) To recap: NYT Co.’s Boston Globe is republishing the headline and first graf of some articles and blog posts by GateHouse newspapers on a suite of new hyperlocal news sites on Boston.com.

But there’s one other legal angle we haven’t looked yet looked at. GateHouse was hailed as a pioneer among newspaper companies back in 2006 when it began distributing content under a Creative Commons license. While most newspapers put up arduous hurdles to republishing their articles, GateHouse had suddenly made the content of its more than 500 publications available for reproduction at no cost — so long as the work is attributed, unaltered, and used for “non-commercial purposes.”

Now that last phrase has become part of the linking dispute. Among other claims, GateHouse argues that the Globe’s use of GateHouse text violates the terms of that CC license, because Boston.com is a commercial website.

But is it? What counts as “commercial”? The Globe doesn’t charge for access to its website. It does run advertising, but so do plenty of small blogs that few people would consider “commercial.” It’s a sticky issue that Creative Commons has not yet clarified for its users — although the organization did launch a study in September in the hopes of clarifying what exactly the organization means by “non-commercial use.”

I checked with Virginia Rutledge, special counsel for Creative Commons, who told me that results of the survey won’t be announced until “later in the year.” But this lawsuit — which is set for trial on Monday — could begin to answer the question. Check out pages 23 and 24 of the GateHouse complaint to see the company’s argument in full. They make a few other claims about how Boston.com is violating the CC license, but the non-commercial issue is clearly the trickiest.

Above is a four-minute excerpt of our interview with lawyer David Ardia in which he discusses the issue; after the jump is a transcript of his comments.

David Ardia:

So one of the complicating factors in this is that GateHouse provides content through its sites through Creative Commons, as a lot of websites do, under a Creative Commons license. It basically lets other users make use of that content, republish it, as long as they meet the requirements of the license. In this case, GateHouse’s requirements were that the use be non-commercial and that there be proper attribution to the source of the information. So in breaking down those two requirements, they’re claiming that Boston.com’s use is commercial. The sites have advertising, there’s profit to be made there by Boston.com in reusing this information, and according to GateHouse, that’s a violation of the licensing terms.

With regard to the attribution requirement, I don’t think there’s any question that Boston.com is properly attributing the information back to the GateHouse and to the Wicked Local sites. What’s interesting about the lawsuit is that the basis for their trademark claim is that that attribution could potentially confuse readers. So The New York Times or Boston.com is in the position of having to comply with the attribution requirements of the license, but in doing so it has to designate the source of that, and it has to say it’s from a Wicked Local site or from another GateHouse Media property. How can it do that without using the name? And if it uses the name, under GateHouse’s theory of liability in this lawsuit, it’s engaging in trademark infringement. And that puts the Boston.com editors in a difficult position because they have to comply with the attribution requirement, but to do so it could raise a trademark issue, at least according to GateHouse.

[…]

So one of the complicating factors in this case is that the Creative Commons license that says non-commercial use is acceptable doesn’t define what “non-commercial” means. And, in fact, Creative Commons just did a survey, starting last month, looking at how its users interpret the term “non-commercial.” We don’t know the results of that survey yet, but my guess is that there’s going to be a broad range of opinion as to what it means to be commercial and what it means to be non-commercial.

If you think about it in the simplest terms, commercial for many people would imply, “You pay me, and I will give you the content.” So that would be a subscription model. That’s the way books are sold, typically. Newspapers don’t operate that way online. Their content is provided for free. There’s no direct commercial transaction between the user and the provider of content. Instead, their money is made from advertisers who run their content alongside the free content in the hope that eyeballs will stray over and see that advertising. That’s a little different, and for many many websites that would not consider themselves commercial nevertheless run advertising. They may run advertising through a Google network, through Google Adwords. Or perhaps they have an Amazon referral. Many bloggers have that. And, if all of those platforms were considered commercial, simply because there’s some advertising associated with the content, that would preclude a great many sites that are currently using Creative Commons-licensed content as non-commercial entities, would put them into the commercial category. So we have to be careful when watching this case, that there isn’t a ruling here that drastically changes the way “commercial” works in the content of Creative Commons licenses.