WHEREAS the parties wish to resolve this action without further litigation,
IT IS HEREBY STIPULATED AND AGREED, by and through the undersigned counsel, that:
1. This action is dismissed with prejudice and without costs to any party.
2. The term "Plaintiff's website" as used in this stipulation and order means either:
( a) all pages of any website that is operated by a Plaintiff, or any of a Plaintiff's subsidiaries, successors and assigns (hereinafter referred to as "Plaintiff" or "Plaintiffs");
( b) any page of any website, whether or not such website is operated by a Plaintiff, that consists wholly or substantially of a Plaintiff's proprietary content; and
( c) any page of any website that includes, but does not consist wholly or substantially of, a Plaintiff's proprietary content, provided that in any action by a Plaintiff to enforce its rights under this subparagraph, it shall be an affirmative defense that Defendants' conduct does not otherwise infringe or violate Plaintiff's rights under any theory of intellectual property, unfair competition, or other law.
3. Subject to any modification of the terms of this stipulation and order pursuant to paragraph 10 below, Defendants agree permanently not to directly or indirectly cause any Plaintiff's website to appear on a user's computer screen with any material (e.g., Universal Resource Locator ("URL"), text, graphics, pop-up window, audio, video or other) supplied by or associated with Defendants or any third party, such as an advertiser, acting in privity with Defendants or under Defendants' direct or indirect control; in particular, Defendants agree permanently to cease the practice of "framing" Plaintiffs' websites as that practice is described in the complaint in this case.
4. Plaintiffs agree that Defendants may link from the totalnews.com website or any other website to any Plaintiff's website, provided that:
( a) Defendants may link to Plaintiffs' websites only via hyperlinks consisting of the names of the linked sites in plain text, which may be highlighted;
( b) Defendants may not use on any website, as hyperlinks or in any other way, any of Plaintiffs' proprietary logos or other distinctive graphics, video or audio material, nor may Defendants otherwise link in any manner reasonably likely to: (i) imply affiliation with, endorsement or sponsorship by any Plaintiff; (ii) cause confusion, mistake or deception; (iii) dilute plaintiffs' marks; or (iv) otherwise violate state or federal law;
( c) Defendants' link must operate in a manner consistent with paragraph 2; and
( d) each Plaintiff's agreement to permit linking by Defendants remains revocable, on 15 business days' notice in accordance with paragraph 14 below, at each Plaintiff's sole discretion. Revocation by any Plaintiff shall not affect any other terms and conditions set forth herein. If Defendants refuse to cease linking upon notice, and any Plaintiff brings an action to enforce its rights under this subparagraph, it shall be an affirmative defense that Defendants' conduct does not otherwise infringe or violate Plaintiff's rights under any theory of any intellectual property, unfair competition or other law.
5. Attached as Exhibit A is a list of Plaintiff's websites that presently are subject to this stipulation and order. Any Plaintiff may supplement this list from time to time by giving notice to Defendants, pursuant to paragraph 14 below, of the URL or other identifying information of any additional Plaintiff's website. Any additional Plaintiff's website will become subject to this stipulation and order 15 business days after receipt of notice by Defendants' counsel. The provisions of this stipulation and order apply only to the websites listed on Exhibit A and such additional Plaintiff's websites as Plaintiffs may give notice of pursuant to Paragraph 14 below. If there is any conflict between a listing now on or later added to Exhibit A and the substantive terms of this stipulation and order, the terms of the stipulation and order shall control. Defendants may from time to time request of any Plaintiff advice as to whether the websites listed on or later added to Exhibit A still should be considered subject to this stipulation and order, and any Plaintiff who receives such a request shall respond reasonably promptly and fully.
6. Nothing in this stipulation and order restricts Defendants from linking to any website page that (a) does not include any of a Plaintiff's proprietary content and (b) is part of any website not owned or operated by a Plaintiff, provided that Defendants may not link to any page of any website in any way that purposefully or overtly encourages users, once at the non-Plaintiff's site, to link to any Plaintiff's website in a manner forbidden by paragraph 2 above. As an illustrative example, not intended to describe the full scope of this subparagraph, it would be a violation of this subparagraph for Defendants to state on their website that a Plaintiff's website could be reached with two clicks -- the first click taking the user to a third-party website, and the second click taking the user, via a hyperlink supplied by the third party, to a Plaintiff's website that would then be seen through Defendants' frame. As a second illustrative example, not intended to describe the full scope of this paragraph, it would not be a violation of this stipulation and order if Defendants simply provide a hypertext link, using frames technology, to a website page other than a Plaintiff's website, from which the user on her own is able to, and does, link to a Plaintiff's website in a manner permitted by law.
7. On the day that this stipulation and order is signed on behalf of the parties, the parties shall issue a joint statement in the form annexed as Exhibit B, which the parties agree accurately reflects their respective views about this settlement as attributed to them therein.
8.
( a) Each Defendant releases and forever discharges each and every one of the Plaintiffs, including any and all of their subsidiaries, successors, assigns, directors, officers, associates, employees and agents, past and present, of and from any and all claims, demands, liabilities, obligations, costs, expenses and damages whatsoever, of every kind and nature, known or unknown and whether or not discoverable that said Defendant now has, ever has had or may ever have against any or all of the Plaintiffs through the date of execution of this stipulation and order that is related directly or indirectly to the subject matter of this litigation.
( b) Each Plaintiff, on behalf of itself and its subsidiaries, successors and assigns, releases and forever discharges each and every Defendant, including Defendants' subsidiaries, successors, assigns, directors, officers, associates, employees and agents, past and present, of and from any and all claims, demands, liabilities, obligations, costs, expenses and damages whatsoever, of every kind and nature, known or unknown and whether or not discoverable that said Plaintiff now has, ever has had, or may ever have against any or all of the Defendants through the date of execution of this stipulation and order that is related directly or indirectly to the subject matter of this litigation.
( c) Each party releasing claims herein agrees that he or it will not bring, commence, maintain, prosecute or affirmatively instigate, directly or indirectly, any legal or administrative proceeding against any party released by such releasing party, based upon any act or omission claims for which are released in this stipulation and order.
9. Each party represents and warrants that it has full power and authority to execute (individually and through counsel), deliver and perform as required by this stipulation and order; that prior to the date of execution of this stipulation and order, all actions of the party necessary for execution, delivery and performance of this stipulation and order by the party have been duly taken; and that this stipulation and order has been duly authorized and executed by or on behalf of the party, is the legal, valid and binding obligation of the party, is enforceable as to the party in accordance with its terms, and will be honored perpetually from the date of execution, whether or not endorsed by the Court.
10. This stipulation and order supersedes any previous arrangements or understandings, whether written or oral, and contains the entire agreement of the parties with respect to the subject matter hereof. Nothing in this stipulation and order shall prohibit the parties from negotiating any further agreement(s), including, but not limited to, agreement(s) by any Plaintiff to permit use of its intellectual property on terms broader than authorized in this stipulation and order. This stipulation and order may be modified only by a writing, of even or subsequent date hereto, that is signed by or on behalf of all parties as to whom the modification will apply.
11. No waiver by any of the parties of any default shall operate as a waiver of that default or any other default, or of the same default on a future occasion, by any party.
12. This stipulation and order shall be binding upon and shall inure to the benefit of the parties, their subsidiaries, successors and assigns. All references herein to "Defendants" shall be construed to apply to each and every Defendant, individually and collectively.
13. In the event that any term or provision of this stipulation and order shall be stricken or invalidated by a court of competent jurisdiction, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
14. Any notice to be given to Defendants pursuant to this stipulation and order shall be given in writing through either of the undersigned defense counsel, by certified mail. Such notice may be given by any Plaintiff or by any Plaintiff's counsel. Defense counsel shall give notice to the undersigned Plaintiffs' counsel of any change of address, within 30 days of such change, by certified mail.
15. This stipulation is entered into by the parties in compromise of disputed claims. Neither the execution of this stipulation and the releases and dismissals provided for herein, nor any other act or agreement in furtherance of this stipulation, shall be construed in any way as an admission of wrongdoing or liability on the part of any party hereto.
16. This Court shall retain jurisdiction over this matter for purposes of enforcing this stipulation and order. All parties expressly consent to this Court's personal jurisdiction for purposes of any action seeking enforcement or modification of this order. Any dispute over the terms of this order that requires reference to state law shall be governed by the law of New York.
17. No conduct authorized under this stipulation and order may be deemed
a violation of the rights of any party hereto.
DEBEVOISE & PLIMPTON
FEIN & JAKAB
By: ____
By: ____
Bruce P. Keller (BK 9300)
Jeremy Feigelson (JF 4963)
Peter Jakab (PJ 8553)
875 Third Avenue
New York, NY 10022
(212) 909-6000
233 Broadway - Suite 930
New York, New York 10279
(212) 732-9290
Attorneys for Plaintiffs
PARKER, FARRINGER PARKER
1825 I Street, N.W., Suite 400
Washington, D.C. 20006
(202) 429-2095
Attorneys for Defendants
Dated: New York, New York
June __, 1997
Dated: New York, New York
June __, 1997
CABLE NEWS NETWORK, INC.
DATAPIX, INC.
By: ____
By: ____
David Kohler
Senior Vice President and
General Counsel
One CNN center
Atlanta, GA 30348
(404) 827-4390
Lawrence Pagni President
610 Gilbert Road, Suite 308
Gilbert, AZ 85234
(602) 545-0304
Dated: Atlanta, Georgia
June __, 1997
Dated: Gilbert, Arizona
June __, 1997
DOW JONES & COMPANY, INC.
GROUPER TECHNOLOGIES, INC.
By: ____
By: ____
David E. Moran
Vice President, Law & Deputy
General Counsel
200 Liberty Street
New York, New York 10281
(212) 416-2000
Roman Godzich
Principal
610 Gilbert Road, Suite 308
Gilbert, AZ 85234
(602) 507-0274Dated: New York, New York
June __, 1997
Dated: Gilbert, Arizona
June __ 1997
REUTERS NEW MEDIA, INC.
TOTAL NEWS, INC.
By: ____
By: ____
Andrew M. Nibley
Executive Vice-President
and Editor
1700 Broadway
New York, New York 10019
(212) 603-3450
Roman Godzich
President
610 Gilbert Road, Suite 308
Gilbert, AZ 85234
(602) 503-3977
Dated: New York, New York
June __, 1997
Dated: Gilbert, Arizona
June __, 1997
TIME INC.
NORMAN BASHKINGY
By: ____
By: ____
Robert E. McCarthy
Senior Vice President, General
Counsel and Secretary
Time-Life Building
1271 Avenue of the Americas
New York, New York 10020
(212) 522-1180
Dated: New York, New York
June __, 1997
Dated: Gilbert, Arizona
June __, 1997
TIMES MIRROR COMPANY
d/b/a Los Angeles Times
ROMAN GODZICH
By: ____
By: ____
William A. Niese
Senior Vice President -
Law & Human Resources
Times Mirror Square
220 W. First Street
Los Angeles, CA 90053
(213) 237-4303
Dated: Los Angeles, California
June __, 1997
Dated: Gilbert, Arizona
June __, 1997
THE WASHINGTON POST COMPANY
LARRY PAGNI
By: ____
By: ____
Diana M. Daniels
Vice President, General
Counsel & Secretary
1150 15th Street, N.W.
Washington, D.C. 20071
(202) 334-6694
Dated: Washington, D.C.
June __, 1997
Dated: Gilbert, Arizona
June __, 1997SO ORDERED:
__
U.S.D.J.__
gazette.net
heraldnet.com
iht.com
kaplan.com
kaploan.com
kprc.com
legislate.com
mlj.com
newsservice.com
newsweekparentsguide.com
pass.com
photostore.com
washingtonpost.com
washpostco.com
wdiv.com
wfsb.com
wjxt.com
wplg.com
wtonline.com
Contacts:
for plaintiffs:
Ms. Maggie Landis
Public Relations Manager
Dow Jones Interactive Publishing
(609) 520-4679 (tel)/4662(fax)
mlandissj.dowjones.com
for defendants:
Mr. Roman Godzich
President, Total News, Inc.
(602) 503-3977 (tel)/(602) 545-4115 (fax)
rgodzich@talnews.com
The lawsuit, Washington Post Co. et al. v. Total News, Inc. et al., 97 Civ. 1190 (PKL) (S.D.N.Y.), was commenced in the U.S. District Court for the Southern District of New York on February 20, 1997. The plaintiffs are six media companies (and their subsidiaries) that operate news websites and/or license news and information to websites run by others: Cable News Network, Inc., Dow Jones & Company, Inc., Reuters New Media, Inc., Time Inc. and its subsidiary Entertainment Weekly, Inc., Times Mirror Company, and The Washington Post Company and its subsidiary Digital Ink Co. The defendants are three companies and three individuals involved with the operation of totalnews.com: Datapix, Inc., Grouper Technologies, Inc., Total News, Inc., Norman Bashkingy, Roman Godzich, and Larry Pagni.
The plaintiffs contended in their lawsuit that the defendants' combination of linking with "framing" caused violations of plaintiffs' rights under the doctrine of commercial misappropriation, the copyright and trademark laws, and other legal doctrines. Users who linked to websites through totalnews.com would see those websites wrapped by a "frame" made up of advertising sold by TotalNews and other material generated by totalnews.com. A user who "clicked" on TotalNews's hyperlink for the Washington Post, for example, would see the website washingtonpost.com in a portion of the screen "framed" by the totalnews.com Universal Resource Locator or "address" at the top, a set of links supplied by totalnews.com at the left, and, at the bottom, the TotalNews logo together with an advertising banner sold by TotalNews.
The defendants contended that it is a user's choice as to how he or she wishes to view a web site -- e.g., with or without graphics, in a small or large screen, within or without a frame -- and that TotalNEWS is simply facilitating that choice.
Under the settlement announced today, TotalNews is allowed to provide a "clean," plain-text link to the plaintiffs' websites, but is not allowed to frame them. For example, a user who clicks on TotalNews's hyperlink for the Washington Post now will go straight to washingtonpost.com without any frames, images, or other content being superimposed by defendants.
Speaking for all the plaintiffs, Tom Baker, Business Director of The Wall Street Journal Interactive Edition at Dow Jones & Co., said: "This agreement will help the Web grow by encouraging linking while enforcing the principle that intellectual property rights will be respected in cyberspace. To keep investing millions in making Web content available for free or at low cost, the companies who brought this suit need to know that Web users will see our content the way we meant for it to be seen. We're pleased to now have that assurance from Total News."
Speaking for all the defendants, Roman Godzich, president of Total News, said: "The TotalNews people can once again focus their resources productively online rather than in a courtroom. We've decided to concentrate our efforts on enhancing TotalNEWS to better serve the thousands of users that support us every day."
The settlement agreement was reached early in the case, before defendants answered the complaint or the Court reached the merits. By agreement, the settlement will be submitted to U.S. District Judge Peter K. Leisure for approval, which is expected.