Does A 27-Second Video Showing How To 'Hack' The NYT Paywall Violate The DMCA?

from the it-certainly-might... dept

We've discussed many times just how easy it is to get around the NY Times' paywall. I've never run up against it because I don't have javascript enabled, and the whole system is javascript based. We have wondered, however, if doing this is technically a violation of the DMCA -- specifically the anti-circumvention clause. After all, I am circumventing technical protection measures. That I have javascript automatically turned off for all sites doesn't much matter.

Of course, now that the paywalls been out for a while, people are finding even more ways to get around the paywall, including merely removing the string at the end of the URL. This is so simple, that someone made a 27-second video showing people how to "hack" the NY Times paywall: Of course, I'm wondering if just this video alone violates the DMCA's anti-circumvention clause. Section 1201 of the DMCA says (in part): "No person shall... offer to the public... any technology, product, service, device, component or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." Is putting up a video that shows an incredibly easy way to get around the NY Times protection measures a violation?

Filed Under: circumvention, dmca, hacking, paywall
Companies: ny times

Appeals Court Realizes Hot News Makes No Sense; Dumps Injunction On TheFlyOnTheWall

from the hot-news-loss dept

"Hot news" was pretty much dead a few years ago. The court-created doctrine, which resulted in a weird quasi-intellectual property on factual information about a century ago, hadn't been used for years and many people had assumed that it was pretty much gone. However, old legal doctrines die hard and, a few years back, some Wall Street firms sought to revive it, claiming that the website theFlyOnTheWall.com violated their "hot news" rights by accurately reporting on how those Wall Street firms were rating stocks. That's factual information and not protected by copyright, but the firms claimed it undermined their business models via hot news... and the lower court agreed, issuing an injunction.

Thankfully, an appeals court has dumped all of that, claiming that hot news is preempted by federal copyright law and that there's nothing wrong with reporting on factual information. The court mainly relies on the famous NBA v. Motorola case, which found that basketball scores and stats were facts and not protected by copyright or hot news. Using the same rules, the court finds that copyright wipes out any "hot news" in this case as well.

We conclude that applying NBA and copyright preemption principles to the facts of this case, the Firms' claim for "hot news" misappropriation fails because it is preempted by the Copyright Act. First, the Firms' reports culminating with the Recommendations satisfy the "subject matter" requirement because they are all works "of a type covered by section 102," i.e., "original works of authorship fixed in a... tangible medium of expression." 17 U.S.C. § 102. As discussed above, it is not determinative for the Copyright Act preemption analysis that the facts of the Recommendations themselves are not copyrightable. See NBA, 105 F.3d at 850. Second, the reports together with the Recommendations fulfill the "general scope" requirement because the rights "may be abridged by an act which, in and of itself, would infringe one of the exclusive rights' provided by federal copyright law," Altai, Inc., 982 F.2d at 716 (citing Harper & Row, 723 F.2d at 200), i.e., "acts of reproduction, performance, distribution or display," id. (internal quotation marks omitted).

Third and finally, the Firms' claim is not a so-called INS-type non-preempted claim because Fly is not, under NBA's analysis, "free-riding." It is collecting, collating and disseminating factual information -- the facts that Firms and others in the securities business have made recommendations with respect to the value of and the wisdom of purchasing or selling securities -- and attributing the information to its source. The Firms are making the news; Fly, despite the Firms' understandable desire to protect their business model, is breaking it. As the INS Court explained, long before it would have occurred to the Court to cite the First Amendment for the proposition:

[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Const., Art I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.

The court also distinguishes the classic "hot news" case (INS) by noting that in that case, the competing firm was taking AP news, rewriting it, and pretending it was its own. That's not what's going on here, where ratings are simply being aggregated.

This is an excellent ruling, though I doubt we've seen the end of "hot news" yet. There may still be appeals, and there are a few other such hot news cases out there. But it's nice to see the judges toss this one out.

Filed Under: copyright, facts, first amendment, hot news, reporting
Companies: afp, ap, belo, gannett, mcclatchy, naa, ny times, scripps, theflyonthewall, time, washington post

NYTimes & LA Times Come Out Against PROTECT IP Act As Written

from the good-for-them dept

Well this is a surprise. The NY Times, which had generally (but not entirely) aligned itself with those who seek greater enforcement of copyright laws, has just put out an editorial arguing against passing the PROTECT IP Act, noting that its "broad definitions" are a serious problem and very likely to be abused -- especially since the bill includes a private right to action:

The broadness of the definition is particularly worrisome because private companies are given a right to take action under the bill. In one notorious case, a record label demanded that YouTube take down a home video of a toddler jiggling in the kitchen to a tune by Prince, claiming it violated copyright law. Allowing firms to go after a Web site that “facilitates” intellectual property theft might encourage that kind of overreaching -- and allow the government to black out a site.

Some of the remedies are problematic. A group of Internet safety experts cautioned that the procedure to redirect Internet traffic from offending Web sites would mimic what hackers do when they take over a domain. If it occurred on a large enough scale it could impair efforts to enhance the safety of the domain name system.

This kind of blocking is unlikely to be very effective. Users could reach offending Web sites simply by writing the numerical I.P. address in the navigator box, rather than the URL. The Web sites could distribute free plug-ins to translate addresses into numbers automatically.

The NY Times suggests that a rewrite of the bill might make it okay, and does support the general idea of the bill, but worries greatly about the broadness of the bill today.

They're not the only one. The LA Times -- who almost always supports everything that Hollywood supports, on the legislative front -- has published a similar editorial, warning that PROTECT IP goes too far and could break the internet. It also advises that the bill not pass as is, and that serious changes should be made.

The main problem with the bill is in its effort to render sites invisible as well as unprofitable. Once a court determines that a site is dedicated to infringing, the measure would require the companies that operate domain-name servers to steer Internet users away from it. This misdirection, however, wouldn't stop people from going to the site, because it would still be accessible via its underlying numerical address or through overseas domain-name servers.

A group of leading Internet engineers has warned that the bill's attempt to hide piracy-oriented sites could hurt some legitimate sites because of the way domain names can be shared or have unpredictable mutual dependencies. And by encouraging Web consumers to use foreign or underground servers, the measure could undermine efforts to create a more reliable and fraud-resistant domain-name system. These risks argue for Congress to take a more measured approach to the problem of overseas rogue sites.

I have to admit I'm pretty surprised by this. By every indication, the PROTECT IP bill had pretty broad support, especially in the media. Hopefully this will at least cause some of those supporting the bill to rethink it.

Filed Under: protect ip
Companies: ny times

NY Times Editor Claims Twitter Killing Conversation, While His Tweets Spawn Conversation

from the compartmentalism-in-140-characters dept

There's been some buzz about NYTimes Editor Bill Keller's recent column, in which -- in true curmudgeon fashion -- he posits that Twitter and such are a problem because they are killing deep conversation:

As a kind of masochistic experiment, the other day I tweeted "#TwitterMakesYouStupid. Discuss." It produced a few flashes of wit ("Give a little credit to our public schools!"); a couple of earnestly obvious points ("Depends who you follow"); some understandable speculation that my account had been hacked by a troll; a message from my wife ("I don't know if Twitter makes you stupid, but it's making you late for dinner. Come home!"); and an awful lot of nyah-nyah-nyah ("Um, wrong." "Nuh-uh!!"). Almost everyone who had anything profound to say in response to my little provocation chose to say it outside Twitter. In an actual discussion, the marshaling of information is cumulative, complication is acknowledged, sometimes persuasion occurs. In a Twitter discussion, opinions and our tolerance for others' opinions are stunted. Whether or not Twitter makes you stupid, it certainly makes some smart people sound stupid.

He then compares this to claims heard in yesteryear about how calculators meant people weren't good at doing math in their head any more, and how future generations with their brains and retinal displays jacked directly into the network would make people bad at remembering stuff. We've heard such claims before, but I think it misses the point. Yes, it's important for people to be able to understand the basic building blocks of things like mathematics, but is it really such a horrible thing if you can free up that part of your brain and let it work on other tasks?

As for the claims about the lack of deep conversations on Twitter, I think that's unnecessarily compartmentalizing communication. Twitter isn't designed for deep conversations, so asking it to do deep conversations and mocking it for not doing so seems sort of silly, doesn't it? And, yet, I know first hand that short bursts of conversations on Twitter have resulted in much deeper conversations outside of Twitter for me, as well as all sorts of connections to people and conversations I never would have had otherwise. That those didn't all happen directly on Twitter seems entirely besides the point. In many cases they happened because of Twitter, and that seems a lot more interesting and powerful than worrying about how some people sound "stupid" on Twitter. Some people sound stupid off Twitter too. Perhaps the problem isn't Twitter.

Filed Under: bill keller, conversation, social networking
Companies: ny times, twitter

NY Times Ignores Its Own Reporter's Key Tweets In Patting Itself On The Back Over Speed Of Its Bin Laden Coverage

from the weak-sauce dept

A bunch of folks have been passing around a piece from the NY Times' "Public Editor," Arthur Brisbane, from this weekend detailing how the NY Times sprang into action to report on the killing of Osama Bin Laden by US forces a week earlier. It is an interesting read, though, as Felix Salmon notes, if you look at the details, it really shows just how incredibly arrogant and out of touch the NY Times is. There are a few key points:

• If you read Brisbane's story alone, you might not realize that many other news organizations had already reported the story before the NY Times did. You might also not realize that it was all over Twitter by the time the NY Times got around to it.
  
• Salmon points out a particularly damning point, in that Brisbane's coverage focuses mostly on the work of reporter Helene Cooper, who apparently heard from a source at 10:34 that Bin Laden had been killed. At 10:40, she got a story up on the NY Times site, and then another NY Times reporter, Jeff Zeleny, tweeted the story. But... that completely ignores the fact that Donald Rumsfeld's chief of staff, Keith Urbahn tweeted the news at 10:24, and the only reason so many people found out about that was because it was retweeted at 10:25 by NY Times reporter Brian Stelter who added the details of Urbahn's connection to Rumsfeld, thus adding credibility to the report.
  
  In other words, nine minutes before Cooper had the news, a different NY Times reporter had already tweeted about the news -- albeit unconfirmed. However, as Salmon notes, it really was Stelter's tweet that helped spread the news:

  For a very different look at how the Osama news broke check out SocialFlow’s exhaustive analysis of 14.8 million tweets on Sunday night. As far as Twitter is concerned, the news was broken by Keith Urbahn at 10:24pm. But it really got momentum from being retweeted at 10:25pm by NYT media reporter Brian Stelter, who added the crucial information that Urbahn is Donald Rumsfeld's chief of staff. Urbahn, here, gets the goal, but Stelter absolutely gets the assist: Stelter's 55,000 followers are extremely influential people in the US media scene, and until Monday's physical newspaper started landing on subscribers' doorsteps, Stelter's tweets were the single most important thing that the NYT published on Osama

• It gets worse. Remember, Cooper only found out the news at 10:34pm. And yet... at 10:33pm, Stelter (again) tweeted that a CBS News producer had confirmed that Bin Laden was dead, via a House Intelligence Committee aide. Brisbane ignores all of this and Salmon points out how ridiculous this is:

  How come Brisbane is ignoring all this? Stelter was way ahead of the rest of the NYT, but Brisbane incomprehensibly discounts his excellent work. That might be because he doesn't consider tweeting to be part of a NYT reporter's job; it might be because he doesn't consider retweeting to be reporting. But Brian Stelter is a prime example proving that neither is true. Brisbane should have taken this opportunity to congratulate Stelter on a job extremely well done. Instead, he is completely overlooked, in favor of tweets from Zeleny and Roberts which came out more than a quarter of an hour after Stelter had publicly jumped onto the case. Which, of course, is an eternity in the twittersphere.

• Oh yeah, and throughout Brisbane's piece, at no point does he link to the tweets in question. Hell, he refuses to link to any non-NY Times URL.

It really is quite striking in showing the mindset of some different parts of the NY Times. A reporter like Stelter realizes what his job is: and that includes passing along important information quickly, even if it comes from competitors to the NY Times. Yet, in Brisbane's world, it seems like the only thing that exists is the NY Times, and even then, he can only acknowledge these other reporters, rather than Stelter. It's a shame. As the analysis done by SocialFlow shows, Stelter had a key role in getting the news of Bin Laden's death out to the world in a rapid fashion.

Filed Under: arthur brisbane, brian stelter, helene cooper, journalism, osam bin laden, speed, twitter
Companies: ny times

Surprise: NY Times Doesn't Think Osama Bin Laden's Death Warrants Taking Down The Paywall

from the it's-a-monthly-thing dept

This is kind of bizarre. The folks over at the Nieman Lab have pointed out that when the NY Times launched its paywall, one of the things they said was that in the event of a "9/11-like" story, they can push a button and pull down the paywall to make sure everyone had access to the news. And yet... the head honchos at the NY Times decided not to do so for the news of Osama Bin Laden's death. The argument for why really makes very little sense. They basically say that since it happened on May 1st, and the "counter" for how many free stories people get per month just reset to zero, there wasn't much of a point. Except, now that means that those same people will hit the limit much earlier if they scanned some of the stories. In other words, the incentive, yet again, was for people to find the news elsewhere. It's really difficult to fathom why the NY Times is so infatuated with driving people to other sites.

Filed Under: osama bin laden, paywall
Companies: ny times

How Do The NY Times Paywall Results Compare To Its Last Paywall?

from the looking-similar dept

One of the oddities in the NY Times introducing its recent emperor's new paywall is the fact that the NYT already played this game and failed a few years ago. Back in 2006, over a year before the NYT finally realized this was a dumb idea, we had pointed out that it appeared its subscriber numbers had totally plateaued, foreshadowing the end of the paywall. I was reminded of that after some were saying that the NYT's recent announcement of 100,000 subscribers to its (still discounted) paywall shows that it's on a path to success.

With that in mind, it's fascinating to see Joshua Benton, over at the Nieman Lab, compare the results of the TimesSelect paywall with this new paywall, and suggest that the initial results aren't really that impressive in that they track the results from last time. After scouring reports to find out how many people signed up for TimesSelect, he put together this chart that shows the clear plateau: So it looks like the last time around, they quickly jumped out to about 100,000 subscribers... and then things slowed down and they had to slog it out for new subscribers. This time around the paywall situation is definitely different. This paywall covers the entire NY Times, but is much more leaky. So you have one force pushing more people to subscribe... and another that diminishes the reasons to subscribe. But the key point remains. The success (or failure) is going to be determined by how many people the paper can convince to keep signing up... and I'm going to go out on a limb and suggest that the NY Times is going to find it hard to grow this part of their business in any significant way over time.

Filed Under: paywall, results, timesselect
Companies: ny times

NYT's Gets 100,000 Subscribers To The Paywall... But It's Too Early To Tell If That Means Anything

from the let's-wait-and-see dept

With the NYT's latest earnings is the news that it's been able to sign up 100,000 people for its new not-really-a-paywall. However, even the NYT seems to admit it has no idea what this number really means, since many of those include discounted offerings, and there's no clear indication whether or not those people will stick around later. In fact, as reader Ragaboo suggests, the NYT was using Groupon to push super cheap subscriptions over the past few weeks, leading to speculation that it was looking for a last minute "push" to boost its numbers. Separately, we'd already seen that automaker Lincoln was offering people free subscriptions as well. So, while this is an interesting bit of data, it'll be more interesting to see what happens next. The other interesting tidbit is that digital ad revenue grew 4.5%, which seems slower than some other online properties lately, and which certainly raises questions about whether the paywall is harming online ad growth -- especially considering the rather substantial drop in traffic. Given that online ad revenue continues to rise, and subscriptions to the paper continue to drop, it still appears like the NYT is betting on the wrong horse in this race.

Filed Under: newspapers, paywalls
Companies: ny times

Even With A Very Leaky Paywall, Noticeable Decline In NY Times Traffic

from the ad-revenues-will-grow... dept

With the NY Times offering up its pretend paywall, part of the supposed idea was that the site was trying to figure out a way to retain its traffic and get people to pay -- a difficult balancing act for sure. So the way it did so was to set up a paywall that didn't really exist, hoping that some people would just pay anyway, but that traffic wouldn't decline. So far, it appears they're a bit off on that latter assumption. Some initial reports show that, in the immediate aftermath of the "not really a wall" going up, page views declined between 11 and 30% per day. That's an awful lot of potential ad revenue lost on a site that gets a lot of traffic. Perhaps it's made up by finding people who were willing to pay for the paywall, but if you had to guess which strategy is going to provide more growth going forward, would it be new paywall subscribers, or more ad revenue?

Filed Under: paywall, traffic
Companies: ny times

Did The NYTimes Just Offload Its Front Page To The Atlantic?

from the seems-like-it dept

We've already pointed out how the NY Times' "paywall," which says it's okay if you click from any other site rather than the NY Times' own site, appears to harm the NY Times and help competitors, and it seems some competitors are stepping up into the breach. The Atlantic, which has embraced the internet, perhaps like no other old school publication, has now started highlighting which NY Times stories you might want to read each day. And, since you're coming from The Atlantic, you can read those articles without having to pay the paywall master. In other words, the Atlantic now provides a better front page to the NY Times than the NY Times does itself.

Filed Under: journalism, paywall, websites
Companies: ny times, the atlantic