New York Times Tells Startup It Can't Even Mention The NY Times
from the fire-your-lawyers dept
Another day, another story of a ridiculously overaggressive legal move by a big company. This time it's the NY Times, which turned its bogus nastygramming skills on a startup called Scroll Kit. Scroll Kit is a three person startup that tries to make a system to create more compelling publishing of stories easier. There's been a big push to make digital media more digitally native, and there have been a few cool examples of it in action, but it still tends to take a lot of development time -- something that Scroll Kit is looking to make easier. Neat. Of course, if you follow the media space, you'd know that last year, the NY Times put out a story called Snow Fall that was very well designed. I didn't think it was miraculous, but definitely a step up, and showed a better way to tell a story online. The old media guard has been spazzing out over Snow Fall as if it was the greatest thing ever, which is silly -- and even the NYT itself is taking that one example way too seriously in turning "snow fall" into a verb inside its newsroom -- as in, "we need to 'snow fall' that story."Okay. Whatever. The guys at Scroll Kit agreed that Snow Fall is a nice example, and they knew that it took the NY Times many months to design it. So, in a compelling example of their own product, they showed how Scroll Kit could be used to recreate Snow Fall's design elements in about an hour, and put up a video showing that. This is called "good marketing." But, to the NY Times, they claimed it was copyright infringement, sending the following email to Scroll Kit founder Cody Brown:
In response to Brown's request for more info, he received a third email, from a different lawyer at the NY Times, Richard Samson, with a statement that is even more ridiculous:
Dear Mr. Brown: We are offended by the fact that you are promoting your tool, as a way to quickly replicate copyright-protected content owned by The New York Times Company. It also seems strange to me that you would defend your right to boast about how quickly you were able to commit copyright infringement:Again, this is completely bogus on many levels. The tool is not "an infringement tool," it's a creative tool for creating this type of thing. Anyone with any even rudimentary knowledge of design and development know that it's fairly standard for people to create tools based on creating things that others have created in the past. In fact, lots of websites copy elements and style from other websites. Even the NY Times tends to be a fairly derivative site design-wise. Second: being "offended" is no legal basis for making a threat. Brown was not boasting about "committing copyright infringement," but about using a tool to be able to do a similar design. It had nothing to do with infringement, and everything to do with making the design process easier.
The NYT spent hundreds of hours hand-coding “Snow Fall” We made a replica in an hour.
If you wouldn’t mind using another publication to advertise your infringement tool, we’d appreciate it.
Sincerely,
Richard Samson
The NY Times is being absolutely ridiculous here.
Once again, however, we see what happens when companies focus on legal strategies rather than supporting innovation. Sure, Scroll Kit could make it easier for competitors to the NY Times to create compelling stories, but it also might help the NY Times drive its own efforts forward. Perhaps, rather than spend many months of its own designers' time, it could use something like Scroll Kit to make it easier for their staff to design such compelling stories. Instead, they focus on stifling it with highly questionable legal threats. You know how you can tell when a company is really in trouble? When it focuses on legal attacks on others, rather than driving its own innovation.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cody brown, copyright, deborah beshaw-farrell, innovation, nastygrams, ny times, richard samson, threats
Companies: ny times, scroll kit
Reader Comments
The First Word
“Copyright to promote the useful arts and science
In practice copyright is used:* to censor undesirable speech
* to prevent you from owning what you bought
* to prevent competition (even when copyright itself is not at issue)
* to make outrageous but bogus claims (I have the copyright on this feature, this flavor, this color, this style, or over plain hard facts).
* to limit growth of the public domain through abuse of copyright length
* to destroy the public domain by re-copyrighting it
* as a tool to accuse and send extortion shakedown settlement letters, aka "copyright trolling", (see practitioners: Prenda, Righthaven, MPAA, RIAA)
* to prevent fair use of any kind, no matter how legitimate that use may be
* to enable "collection societies" to collection on works they do not own
* to enable "collection societies" to shakedown people's private use of the radio (or other music) in a public location
* . . . and other things I'm sure I've missed
Copyright bad? Does it need reform? Don't even think such a thing!
Subscribe: RSS
View by: Time | Thread
owns the copyright in the feature?
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
It's not the first time they've used content without permission: http://codybrown.name/2013/03/an-unsolicited-redesign-of-time-com/
Regarding the second request to not use the name, the NYT has clarified that they object to Scroll Kit's promoting itself as a way to infringe on the NYT's copyright: http://www.poynter.org/latest-news/mediawire/214142/nyt-scroll-kit-developer-is-bragging-about-copyr ight-infringement/ While the actual purpose of the tool is not that, the way it's being presented is questionable (at least morally). If Scroll Kit had just used different content and said "Snow Fall-like", I can't imagine the Times would give a shit.
[ link to this | view in thread ]
Copyright to promote the useful arts and science
* to censor undesirable speech
* to prevent you from owning what you bought
* to prevent competition (even when copyright itself is not at issue)
* to make outrageous but bogus claims (I have the copyright on this feature, this flavor, this color, this style, or over plain hard facts).
* to limit growth of the public domain through abuse of copyright length
* to destroy the public domain by re-copyrighting it
* as a tool to accuse and send extortion shakedown settlement letters, aka "copyright trolling", (see practitioners: Prenda, Righthaven, MPAA, RIAA)
* to prevent fair use of any kind, no matter how legitimate that use may be
* to enable "collection societies" to collection on works they do not own
* to enable "collection societies" to shakedown people's private use of the radio (or other music) in a public location
* . . . and other things I'm sure I've missed
Copyright bad? Does it need reform? Don't even think such a thing!
[ link to this | view in thread ]
Re:
> I can't imagine the Times would give a shit.
Oh yes they would. This is about copyright. The copyright maximallists are crazy. I'm sure a wave of them will be along shortly to demonstrate and confirm this.
[ link to this | view in thread ]
[ link to this | view in thread ]
Copyright
[ link to this | view in thread ]
Re:
Software patents and copyright have let people patent digging a hole. Not a particular and specific method for digging a hole, but the digging of a hole itself.
[ link to this | view in thread ]
Re:
Yep, definitely none employed by the NY Times (oops, is that infringement? I mentioned their name)...
[ link to this | view in thread ]
Re: Copyright to promote the useful arts and science
[ link to this | view in thread ]
Re: Copyright to promote the useful arts and science
* providing 'gainful' employment to lawyers.
* Enabling lawyers to exhort money by threatening more in the way of legal costs to fight them than settling on their terms.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
The Farmer and the Viper
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
/S
[ link to this | view in thread ]
Re: Copyright
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Copyright
[ link to this | view in thread ]
[ link to this | view in thread ]
Sounds familiar.
Apple? Is that you?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Copyright
Still sounds like a pretty good fair use. Just a coder trying to find media to demo his code, and foolishly thinking that he can use freely available media from a big company. (The HORROR!!!)
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Copyright
[ link to this | view in thread ]
Re: Re: Re:
Right.... of course they would be okay with something *similar*..
As to the NYT's themselves they have no legal leg whatsoever to stand on in this matter there have been numerous precedents of demo's of other persons works to explain what the 'new' thing can do better and more efficiently..
Basically the NYT is suffering from Butthurtitis and the NYT lawyers need to get their heads out of theirs
[ link to this | view in thread ]
NYT Legal Dept. MO / Perverse Incentives
The NYT Legal Dept. is focused on 1) Protecting the NYT brand and content, without any thought whatsoever to the big picture; and 2) justifying the legal department's own existence, which includes sending at-times meritless threat letters.
They also have shown a penchant for black/white thinking; refusal to negotiate or consider circumstances; and for making absolute threats of suit, but rarely actually pulling the trigger and suing.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Copyright
Nice troll.
[ link to this | view in thread ]
Re: Re: Copyright to promote the useful arts and science
*providing employment to shysters
*enabling legalized racketeer and extortion by said shysters.
[ link to this | view in thread ]
Use Your Own Content
[ link to this | view in thread ]
BOFH
It's charming that you think you're still relevant, but if you don't stop pestering me, I will replace you with a small shell script.
[ link to this | view in thread ]
Re: Re: Re: Copyright to promote the useful arts and science
[ link to this | view in thread ]
Re: Re: Re: Copyright
Please show the actual fair use here, pointing to the fair use laws to explain.
[ link to this | view in thread ]
Re:
I don't know if it is the fact that the people who created snow fall misled the NYT into paying for 6 months work where it could easily have been done in a few hours even without the tool. Yes there is still the time taken to investigate the story and question the survivors but to say that using them as an example of what is great and what the future could look like is nothing more than rewarding them for their design and hopefully encouraging them to make more of it available on their site.
I am surprised that the NYT could think that pointing to them as a good example of what their software can achieve is bad in any way.
If i was stroll i would have take a story and created a site and used that to show how useful the software is, ignore the NYT give them no acknowledgment for their design and just release it as something new.
With the NYT going so crazy and not thinking they have enabled scroll to get a lot of much needed advertising, something i doubt was their intention to start with.
[ link to this | view in thread ]
copyright infringement
[ link to this | view in thread ]
Re: Re: Re: Re: Copyright
They are not using the content to make money they are using it to show the possibilities that can be achieved within an hour, not 6 months. I would think the NYT would be happy with this as they do not have to spend a small fortune creating a story in a way people enjoy much much cheaper than they would have otherwise.
[ link to this | view in thread ]
Re:
Seriously congress needs to come up with an easy way to determine when something is fair use and when not to specifically help those who wish to create and more importantly those whose job it is to know.
[ link to this | view in thread ]
Re: Use Your Own Content
and your confusion shows the problem with everyone, not even the lawyers knowing what is covered by fair use and what is not.
The reason i believe this is fair use is the fact that they claim it took 6 months to create , while scroll is releasing software that does the same in an hour, how are you going to be able to compare when you cannot use the original.
And this is not about generating money from the content, the content is used as an example, which is allowed in fair use laws i believe or hope as nobody seems to know at the moment.
Also the artwork you mention previously was stolen to generate money from advertising, this is not the case here.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Copyright
Now, can you tell me, using the standard test, how this is fair use? Remember, this is to promote what is really a commercial product. So, what do you think?
Put another way, could the same type of promo video be made using generic color block images, using lorem ipsum text? The answer is yes, they could have "recreated" the NYT page without their content, and then used it as an example, going with the basic "large metropolitain newspaper" and been done with it.
Fair use? I am still waiting for someone to clearly state why using NYT's content and name is fair use here.
[ link to this | view in thread ]
NY Times are hypocrites
[ link to this | view in thread ]
NY Times are hypocrites
[ link to this | view in thread ]
So, it's just another thing with being part of the grown up world in business. Get your permissions. It's just what professionals do.
[ link to this | view in thread ]
Re: Re: Re: Copyright
http://www.insidethestory.org/preview/free-preview-escaping-the-box-the-future-of-visual-s torytelling-on-the-web/
[ link to this | view in thread ]
Re: Re: Re: Copyright
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Use Your Own Content
> Also the artwork you mention previously was stolen to generate money from advertising, this is not the case here.
It's exactly the same. Scrollkit is using this content to promote their own paid software.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re:
Wow, they've really taken the moral high road there. They're all pissy about someone building off their work, but don't care if you build off somebody else's work instead. Is this the copyright equivalent of NIMBY?
[ link to this | view in thread ]
Re: Re:
It makes you wonder how many other stories around here are equally based on poor assumptions.
[ link to this | view in thread ]
Re: Re:
You should learn what fair use means. Might help.
[ link to this | view in thread ]
Re: Re: Re:
Yes, you should.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Copyright
Of course, some lorem ipsum might be safer, if less good as an illustration, especially if your point is precisely "we can generate this for 1% of the resources, why are you paying those cowboys?".
And I'll sympathise more with papers the day they pay people who feature in their stories for the stories they write. (Which of course would be wrong in many cases.)
[ link to this | view in thread ]
Re: Re: Re: Re: Copyright
Fair use butthurts copyright maniacs. And no, this could be out of fair use - but you refuse to even countenance it unless it's you 'infringing'.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Use Your Own Content
[ link to this | view in thread ]
Re: Re: Re: Re:
Mike already explained why he thought there is a strong fair use argument in the article:
This use fails on the 4th factor of consideration and does not "effect the potential market for, or value of, the copyrighted work."
http://www.copyright.gov/fls/fl102.html
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
Oops. Worded that wrong. Didn't mean "fails". I meant that the 4th factor would support that this use is fair use.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Funny, never new about the multimedia part...
Just goes to show - what makes a great story is not all the tech wizardry but the actual story....
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
Because the first factor would have to be considered also: The purpose in your case would be use the images for your advertisement. The purpose in the Scroll Kit case is to show that their product can produce a Snow Fall-like experience faster and easier than what NYT had to do. It's like creating an advertisement with your product and your competitor's product to show comparisons and contrasts.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
And that framing confuses me. How is this tool a way to infringe their copyrights at all? It's not like everyone is going to use it to create the exact same story over and over again.
I think a better analogy would be if created an oven that makes exact replicas of Twinkies. Couldn't I create an advertisement that has customers tasting my sponge cakes and comparing them to Twinkies?
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Copyright
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;... The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit.
Seems pretty clear, allowing this use would obviously further creativity and not supersede the original for profit.
the nature of the copyrighted work;
I'm not sure what NYT is claiming exactly. If it's over the news story, that would not have very strong copyright protection. If it's over other elements of how it was presented, that could weigh more against fair use.
the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
I have no idea how much they used.
the effect of the use upon the potential market for or value of the copyrighted work.
Zero effect at all. This is not in any way competing with the original news story.
So as always it's a judgment call, but I tend to put a lot of weight on the last factor since that's where any harm would come from, so in this case I would say the use is fair. If you believe otherwise, perhaps you would like to explain.
[ link to this | view in thread ]
Re: Re: Re: Re: Copyright
You should probably read up on the fair use doctrine.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
You might be able to, if your ad has something to do with how the photos are used on Flickr. Maybe for a competing service or a Flickr-related browser plugin. It depends on how the fair use factors weigh out in that particular case. If you just need a photo of a dog for your dog food commercial, that is not going to fly.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
I think the idea is that ScrollKit is encouraging people to take regular NYT news stories and use this tool on them to turn them into whatever cool web news thing that it does. I think that's stupid, but it sounds like that's the concern. If that's what they're worried about, they should buy the tool and do it themselves before someone else does.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
According to the comments here, that would be perfectly okay.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
Mike doesn't care if anybody reproduces his content and has repeatedly stated that. He's had more than a few sites do exactly that and they usually fail pretty quickly since everyone can go to the original anyways and the other sites don't have some of the scarcities that Techdirt offers, like comments from the authors themselves and an engaged community.
But yeah, I would think that's a pretty strong case of fair use myself. Of course, only a court of law could determine that for sure.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Copyright
2, nature: copying of the exact text content, images, video - fail
3, amount: roughly the entire first page of the original - fail
4, impact: promoting a service with the purpose of creating competing content - debatable (not clear cut)
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Copyright
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Copyright
[ link to this | view in thread ]
Re:
That would make no difference.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It isn't different. If they used a single article for demonstration purposes, it would have a pretty good fair use claim. If they used all the articles, not so much.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
The point is that if it's fair use (and of course you can disagree about that) then permission isn't required.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Copyright
Commercial use is only part of one of the four factors used to determine fair use.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
If this can be deemed an infringement tool, then the NYT better get busy sending out C&D letters to any tool available for creating long scrolling pages.
OMG TextEdit is a tool of mass infringement. Call the Internet Police!
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Copyright
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Copyright
You really think people will go to ScrollKit's site to get NYT stories rather than NYT's? Because that's how there would be a market impact.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
That's not correct, fair use is determined based on the balance of the four factors.
[ link to this | view in thread ]
Re: Re: Re:
It depends on the circumstances. If you're talking about NYT they do it all the time and rely on fair use as part of their news reporting. Note that this is done for commercial gain, but is still fair use. If you mean someone else, then I'm not sure what you're referring to by copyright enforcement companies.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Copyright
To add to the discussion, how about as an example, a well known trans-formative work like say Andy Warhol's Soup Cans art work of 1962. I could give more but I think the point is made. The case can certainly be made that the scroll kit example was an acceptable trans-formative work, although I will agree it could have been introduced with a little more tack.
I can understand that on its face someone may have thought the NY Times recreation was an insult or embarrassment to those created the original work. But this was a little heavy handed.
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Copyright
[ link to this | view in thread ]