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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

December 03 2009

22:51

Will Google Sidewiki Shift Control of Online Comments?

Journalists and news outlets are accustomed to offering comments and criticisms about others, but they're not as used to being the subject of public comment themselves. In the online world, where technology can and does upend established relationships, journalists and online news outlets are joining the ranks of the commented-upon.

The shift has taken place due to the increased presence of commenting and feedback features on news websites, and partly thanks to the use of comment-friendly platforms such as WordPress. In these contexts, the news outlets have chosen to accept user comments, and they retain a certain amount of control over which ones appear on their site. Now, a new technology, Google's Sidewiki annotation tool, is poised to present a challenge to website owners, including news outlets, that attempt to control the interface between their site and end users. Suddenly, they won't have as much control over comments related to their content.

And that change in control might lead to some legal tussles down the road.

Google Sidewiki

Google debuted Sidewiki in September. The tool permits users of the Google toolbar to write comments about any website they visit. These comments are then visible to other Sidewiki users when they navigate to the same page. But the comments are hosted by Google, rather than the website itself.

The Google Sidewiki site provides a graphic depiction of what a Sidewiki entry looks like. When the Sidewiki button on the Google toolbar is clicked, a sidebar opens to the left of the webpage and displays the comments entered by Sidewiki users.

Usually, a website's publisher decides whether or not to provide comment functionality, and if such functionality is provided, the site's owner retains the ability to delete unwanted comments. But a website operator has virtually no control over the Sidewiki functionality. This is something of a major shift.

Attack of the Commenters

Some websites have already been the subject of negative Sidewiki comments. In a September 24 blog post on Econsultancy, "Google Sidewiki: Brands under Attack," the author included examples of Sidewiki comments on the Microsoft and Apple websites. Microsoft products were described as "useless" and "crap," and Apple was slammed for "lying" and shipping products with "severe bugs."

Another example comes from a September 24 comment on the website of the Daily Mail. A commenter named "supaswag" wrote, "Why?? ... would you read this sad toss? Don't you have more important things to do? Seriously ... you'll find better/proper news here..." The link included in the comment led to the website of a Daily Mail competitor, the Guardian.

Responding to Sidewiki

A website owner is given few options to respond to comments like those listed above. Website owners can claim their sites through the Google Webmaster functionality, and thereby gain access to the top comment spot on Sidewiki. This means they can add whatever content they wish to the thread about their site(s). Other user comments are sorted according to a secret Google algorithm that takes into account the responses of Sidewiki users to the question of whether or not a particular comment is "useful," among other factors.

Google has a Sidewiki content policy that prohibits spam and malware, threatening, harassing and sexually explicit comments and the like. But commercial content in general is not prohibited, only "unwanted promotional or commercial content" (which is included in the definition of spam). It is not clear by whom the promotional or commercial content must be "unwanted" in order for it to constitute spam.

There is a link for reporting abuse, but the link leads to a form that is available to any Sidewiki user; it does not appear that website owners themselves are given any priority when it comes to communicating concerns to Google.

Sidewiki and the Law

One of the legal issues raised by Sidewiki is whether it intrudes upon the rights of website owners to control their interface and interactions with users. A similar type of technology that comes to mind is pop-up advertisements. Web users have become accustomed to seeing pop-ups -- and equally accustomed to blocking them. But several years ago, the ubiquitous and intrusive nature of pop-ups led a group of media companies to join in a litigation effort against Gator. Gator distributed technology that enabled the delivery of pop-up advertisements on websites without the permission or participation of the sites' owners.

gator.jpg The media company plaintiffs, as well as other plaintiffs in similar lawsuits, took the position that the pop-up advertisements violated trademark law. The media companies were successful in obtaining a preliminary injunction, and the litigation was eventually settled favorably. The company that distributed the pop-up technology is now out of business. As a result, there was never a definitive resolution of the issues raised in that case.

The lawsuits related to trademark law were based upon the fact that the pop-up functionality was being used to deliver commercial advertising, which presents a different set of legal considerations. But what if the comments that appear next to a site via Sidewiki are non-commercial comments by users, rather than commercial messages? Legal challenges by site owners to Sidewiki may be complicated by the fact that Sidewiki facilitates all kinds of messages, both commercial and non-commercial.

Has Sidewiki Got Legs?

Sidewiki is not the first or only service of its kind. Services such as Draw Here, Fleck, Trailfire and MyStickies have offered website annotation capability for a few years, but none of these services have garnered widespread adoption. (One annotation startup, ReframeIt, claimed recently that Google appropriated its patented technology in creating Sidewiki.)

Right now, Sidewiki users appear to be relatively few, and the technology presents some barriers to widespread use. In order to see Sidewiki comments, a user must install the Google Toolbar and its enhanced features. And a user must also be logged in to a Google account in order to use the Sidewiki functionality.

But being the media giant that it is, Google may have the capacity to bring Sidewiki, and website annotation, into mainstream use. If that happens, online news outlets, along with other websites, may find that the dialog on and about their sites is increasingly controlled by Google. And that could result in some interesting legal issues for all parties.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

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