Thursday, October 25, 2007

News-Press and Indy Have Date In Court

Almost exactly one year to the day after it was filed, the News-Press' lawsuit against the Santa Barbara Independent will finally get its day in court this coming Monday.

Both sides have brought motions for summary judgment seeking to get some of the claims in the lawsuit resolved in their respective favor without the necessity of actually going to trial.

The lawsuit grows out of an article that was written by Scott Hadly, who was then a senior reporter for the News-Press, that gave an account of what transpired in the newsroom the day executive editor Jerry Roberts and five others resigned. The story never ran. Acting publisher Travis Armstrong killed it.

In a declaration filed with the court in the summary judgment motion, Armstrong claims he had strong concerns about the factual accuracy of the article and the legal exposure it might have entailed.

Other observers, including myself, suspected that the real reason the article was killed was because News-Press owner Wendy McCaw didn't want any stories that cast the News-Press in a bad light running in her paper, a suspicion that would seem to be supported by McCaw's April 8, 2006 memo to publisher Joe Cole.

Days after the News-Press chose not to publish Hadly's article, the Independent did. On July 14th of last year the Indy published the entire Hadly article by posting a link to it on its website.

A week later, the article was taken down after News-Press lawyers sent letters to the Indy demanding that it be removed. Most observers thought that would be the end of it until October 26th of last year when it was announced that the News-Press had sued the Indy for for copyright infringement, misappropriation of trade secrets, unfair business competition, and intentional and negligent interference with prospective economic advantage.

So how did the Indy get a hold of the spiked Hadly article to begin with? According to the motions and supporting documents filed in the case by the Indy, it wasn't from Hadly. Hadly has denied providing it to the Indy and Nick Welsh, who wrote the article that contained the offending link, denied receiving it from him saying only that he got it from several anonymous sources.

The fact that the article enjoyed copyright protection is not in dispute. The dispute is over whether the "fair use doctrine" permitted the Indy to use it. The "fair use doctrine" permits the use of the copyrighted works of for purposes of criticism, commentary or news reporting. The Indy's lawyers argue that publication of the Hadly article falls squarely within the doctrine of fair use.

The News-Press argues that "fair use" doesn't apply to copyrighted works which the holder of the copyright has chosen not to publish because it usurps the owner's right to determine when and where to publish its work.

In addition to the Hadly article the News-Press is also suing the Indy over its alleged possession of another News-Press article that never saw the light of day, the story that the News-Press had sued Roberts for breaching his contract and was in a confidential arbitration over the matter.

The story had been assigned to cub reporter Vladimir Kogan, then the paper had to kill it when it finally occurred to someone that if they ran it they would be violating the confidentiality provisions of their very own arbitration agreement. Nevetheless, word of the existence of the story leaked out and Welsh got wind of it. Welsh sought to confirm by calling Kogan and asking him if he in fact was working on such a story.

Curiously, the only evidence to support the claim that the Indy had purloined a copy of the actual story was Welsh's statement to Kogan that "he had a copy of the Arbitration Story in his possession."

Welsh maintains he told Kogan he had the story as a ruse, common in investigative reporting, whereby a reporter intimates that he has, or could easily get, certain information (even if this is not true) so as to encourage a person to share his side of the story, or in this case to confirm that the story indeed existed.

Kogan, for his part, says that he never believed Welsh because Kogan knew for a fact he had never given the story to anyone, not even his own editor. Nevertheless, Kogan's editor, Scott Steepleton asked Kogan to sign a declaration stating that he believed Welsh had a copy of the arbitration story. Kogan refused to do so.

I could go on an on about the details and nuances of the lawsuit but this is a blog and you didn't come here to read "War and Peace."

How the judge will rule come Monday is any body's guess. I plan to attend the hearing which takes place in federal court in downtown Los Angeles. As soon as I know, you'll know. Actually, you'll know as soon as I can get to a WiFi hotspot.

* * *

Sighted: Wendy McCaw with her attorney, Barry Cappello, sitting in a booth at Joe's for lunch Wednesday. They shared a large bottle of San Pellegrino water and each had a salad. It was a working meal to review papers Cappello had brought along in a binder. Wendy picked up the tab and paid in cash.

That's one "celebrity sighting" that won't be reported by Dr. Laura or London Britches.

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