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March 31 2011

23:54

Goodbye, NYTClean, hello new name? A Canadian coder gets a letter from the NYT’s legal department

Remember David Hayes, the Canadian coder who, when confronted with the new New York Times paywall, figured out a way to evade it with four lines of JavaScript? (Technically, only three lines of code and one line of comment.) We wrote about it at the time as part of our coverage of the paywall.

Well, according to David’s blog, the Times has reached out to him in the form of an email from its legal team asking him to stop offering his JavaScript bookmarklet under the name NYTClean. But that’s the interesting part: The Times’ only stated complaint is the name of the bookmarklet, not its existence.

Here’s the text of the email, according to David’s blog post:

I am writing concerning your “NYTClean” bookmarklet, posted at http://euri.ca/2011/03/21/get-around-new-york-times-20-article-limit/.

As you obviously know, The New York Times Company has used its ‘The New York Times’ trademark since at least as early as 1851 and today offers numerous products and services under its famous ‘The New York Times’ trademark, including its online version of The New York Times at the URL NYTimes.com, and various blogs and electronic media products. NYTCo’s NYTimes.com website receives over 15,000,000 unique visitors each month. NYTCo owns numerous registrations for its ‘The New York Times’ trademark in the U.S. Patent and Trademark Office and Canadian Trade-Marks Office and these trademarks are among the company’s most valuable assets.

We object to your use of our famous “NYT” trademark in connection with your application and your promotion thereof, which constitutes trademark dilution and trademark infringement under U.S. and Canadian trademark law.

Accordingly, we ask that you immediately cease use of the “NYT” trademark in connection with this application. This email is without prejudice to any action that may be necessary to protect the valuable rights of NYTCo in its intellectual property.

Very truly yours,

Rxxxxxx Sxxxxx
Senior Counsel
The New York Times Company
[Contact information followed]

The trademark claim follows on the Times’ similar request to Twitter regarding the @FreeNYTimes account’s use of a Times logo as its Twitter avatar. (The issue was apparently not, as was reported, with @FreeNYT, which is unrelated to @FreeNYTimes.) In both cases, the actual workaround wasn’t the issue — the use of a Times trademark is.

Now, of course, the NYT’s concern over its trademarks doesn’t limit its ability to come back later with another legal claim. But if any evasion method so far was going to prompt a Times claim under the Digital Millennium Copyright Act’s anti-circumvention rules, NYTClean was a prime candidate. Those rules place limits on the use of tools to get around DRM, which in the right light the Times paywall could be considered. (To be clear, the Times has, to my knowledge, never mentioned the DMCA as a possible weapon against paywall jumpers. But the possibility has been a topic of conversation in the technology community.)

Here’s the DMCA language:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title…

…to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. [Emphasis mine.]

Invoking the DMCA would be breaking out the big guns, and would no doubt cause a backlash against the Times. Its attorney’s email shows no signs of such a claim, which fits well with the tone the Times has struck on potential paywall evaders since before the U.S. launch: that it will “continue to monitor the situation” but doesn’t plan to plug any of the many leaks in the wall.

Personally, I think the Times is taking the right approach here, since the actions of people who use JavaScript bookmarklets aren’t likely to have any impact on those of the Times’ readers who might actually pay. (Although NYTClean, unlike other evasion methods out there, leads the Times to serve a story page without ads. Even though that’s not something intentional in Hayes’ code, it’s still obviously suboptimal for the paper.)

For his part, David Hayes says he plans to comply with the Times’ request and rename the script to something like NYNewspaperClean. But he also says the Times missed an opportunity:

I’m a big fan of the newspaper in question; I would’ve taken the page down in exchange for a manila envelope with leftover detritus from Bill Safire‘s old desk

March 25 2011

14:00

This Week in Review: The New York Times’ fees and free-riders, and tying community to local data

Every Friday, Mark Coddington sums up the week’s top stories about the future of news.

Debating the Times’ pricing structure: There was really only one big news story in the media world this week: The New York Times’ paid-content plan, which is live in Canada now and coming to everyone else on Monday. I divided the issue into two sections — the first on general commentary on the plan, and the second specifically about efforts to get around the paywall.

We learned a bit more about the Times’ thinking behind the plan, with a story in the Times about the road from its last paid-content system, TimesSelect, to this one, and an All Things Digital interview with Times digital chief Martin Nisenholtz, in which he said, among other things, that the Times didn’t consider print prices when setting their online price levels. Former Times designer Khoi Vinh also looked at the last couple of years, lamenting the lost opportunity for innovation and the legacy of TimesSelect.

There were a couple pieces written supporting the Times’ proposal: Former CBS digital head Larry Kramer said he’d be more likely to pay for the Times than for the tablet publication The Daily, even though it’s far more expensive. The reason? The Times’ content has consistently proven to be valuable over the years. (Tech blogger John Gruber also said the Times’ content is much more valuable than The Daily’s, but wondered if it was really worth more than five times more money.) Nate Silver of Times blog FiveThirtyEight used some data to argue for the Times’ value.

The Times’ own David Carr offered the most full-throated defense of the pay plan, arguing that most of the objection to it is based on the “theology” of open networks and the free flow of information, rather than the practical concerns involved with running a news organization. Reuters’ Felix Salmon countered that the Times has its own theology — that news orgs should charge for content because they can, and that it will ensure their success. Later, though, Salmon ran a few numbers and posited that the paywall could be a success if everything breaks right.

There were more objections voiced, too: Both Mathew Ingram of GigaOM and former newspaper journalist Janet Coats both called it backward-looking, with Ingram saying it “seems fundamentally reactionary, and displays a disappointing lack of imagination.” TechDirt’s Mike Masnick ripped the idea that people might have felt guilty about getting the Times for free online.

One of the biggest complaints revolved around the Times’ pricing system itself, which French media analyst Frederic Filloux described as “expensive, utterly complicated, disconnected from the reality and designed to be bypassed.” Others, including Ken Doctor, venture capitalist Jean-Louis Gassee, and John Gruber, made similar points about the proposal’s complexity, and Michael DeGusta said the prices are just too high. Poynter’s Damon Kiesow disagreed about the plan structure, arguing that it’s well-designed as an attack on Apple’s mobile paid-content dominance.

Are paywall loopholes a bug or feature?: Of course, any barrier online is also a giant, flashing invitation to get around said barrier, and someplace as influential as the Times was not going to be an exception. Several ways to bypass the Times’ pay system popped up in the last week: There was @FreeNYT, the Twitter account that will aggregate Times content shared on Twitter, and NYTClean, a browser bookmarklet that strips the Times’ paywall coding, allowing you to read the Times just like normal. The Lab’s Josh Benton noted how easy the hack was to come up with (four lines of code!) and speculated that the Times might actually want nerds to game their system, “because they (a) are unlikely to pay, (b) generate ad revenue, and (c) are more likely to share your content than most.”

So how has the Times responded to all this? A bit schizophrenically. Publisher Arthur Sulzberger Jr. said the people who would find ways around the system would be “mostly high-school kids and people who are out of work.” And the Times asked Twitter to shut down the aggregating Twitter accounts (for a trademark violation) and extended its limit on daily search-engine referrals beyond Google. But the Times is also widening some pathways of its own, making it so you can’t hit the wall directly from a blog link, and offering 200,000 regular readers free online access for the rest of the year through an advertiser.

Search Engine Land’s Danny Sullivan mocked the Times’ behavior toward wall-jumpers as an effort to have its paid-content cake and eat it too: “This wall is designed, as best I can tell, only to be a barrier to your most loyal — and most stupid — readers.” Slate’s Jack Shafer made a similar argument to Benton’s, pointing out that online free-riders aren’t keeping paying customers from reading the Times (like, say, someone who steals a paper edition, as Sulzberger analogized) and are actually help the paper continue its influence and reach.

Adding community to local data: EveryBlock, a three-year-old site owned by MSNBC.com that specializes in hyperlocal news data, unveiled its first major redesign this week, which includes a shift in focus toward community and location-based conversation, rather than just data. All place pages now allow users to post messages to those nearby, using what founder Adrian Holovaty called the “geo graph,” rather than the “social graph.” Mashable added a few valuable details (notably, the site will bring in revenue from location-based Groupon displays and Google ads).

Holovaty answered a lot of questions about the redesign in a Poynter chat, saying that the site’s mission has changed from making people informed about their area as an end in itself to facilitating communication between neighbors in order to improve their communities. GigaOM’s Mathew Ingram applauded the shift in thinking, arguing that the main value in local news sites is in the people they connect, not in the data they collect. At 10,000 Words, Jessica Roy noted that the change was a signal that hyperlocal sites should focus not just on the online realm, but on fostering offline connections as well.

NPR on the defense: Two weeks on, the hidden-camera attack on NPR continues to keep it in the middle of the news conversation. Following last week’s vote by the House to cut off NPR’s limited federal funding, several media folks made cases to keep NPR’s federal funding alive, including the Washington Post’s Len Downie and Robert Kaiser and Poynter’s Roy Peter Clark. NPR host Steve Inskeep argued that NPR’s most important work has nothing to do with any liberal/conservative bias. “Think again of my colleagues in Libya, going forward to bear witness amid exploding shells. Is that liberal or conservative?” he asked.

Elsewhere, James O’Keefe, the producer of the gotcha video, and Bob Garfield of NPR’s On The Media had it out on the air, and DailyFinance gave a picture of NPR’s financial situation. Howard Kurtz of Newsweek and The Daily Beast wrote that some NPR journalists think that NPR management’s passive, reactionary defense of their organization is damaging it almost as much as the attacks themselves.

Reading roundup: Not too busy of a week in the media world outside of Timesmania. A few things to take note of:

— A quick news item: Journalism Online, Steve Brill’s initiative to help media companies charge for their content online, is being snatched up by the Fortune 500 printer RR Donnelley, reportedly for at least $35 million. PaidContent broke the story, and Ken Doctor wrote about the unexpected difficulties the startup encountered.

— At the New York Review of Books, Steve Coll wrote a thoughtful piece on the competing claims regarding technology’s role in social change.

— For the stat nerds: The Lab’s Josh Benton looked at the latest of the continual stream of depressing graphs flowing from the newspaper industry, and Peter Kafka of All Things Digital analyzed the source of traffic for some major sites across the web, comparing the influence of Facebook and Google.

— For the academic nerds: Here at the Lab, USC Ph.D. candidate Nikki Usher talked to media sociology rock star Herbert Gans about targeted and multiperspectival news, and Michigan Ph.D. candidates William Youmans and Katie Brown shared a fascinating study about Al Jazeera and bias perception.

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