Am I Violating The DMCA By Visiting The NYTimes With NoScript Enabled?

from the simple-questions dept

As we continue to explore the NY Times’ bizarrely pointless paywall, it comes as no surprise that the wall itself is barely any wall at all. It’s not even a fence. It’s basically a bunch of fence posts, and someone screaming: “Pay no attention to your own eyes. There is a fence here, and you should go round the front and pay at the entrance… unless someone sent you here. Then walk on through.” That, of course, is bizarre, and it means that most people will never actually see any fence at all. But it gets even more bizarre when you discover that the “paywall” itself has apparently been written in javascript, meaning that when you do hit the wall, the full article you want to read actually loads in the HTML, it’s just then blocked by some script asking you to pay up. That means it’s even easier to remove than many had predicted (no need to even delete cookies or any such nonsense). In fact, that link above points people to NYTClean, a four-line javascript bookmarklet, that makes it easy to remove the paywall with (literally) the click of a button, should you actually encounter it.

Now, when I read that, my first thought was that certainly sounds like a “circumvention device” under the DMCA. The author is Canadian, so he may be protected for now, since Canada (thankfully) doesn’t yet have an anti-circumvention clause that makes any such circumvention tool illegal — though, the Canadian government is still apparently considering a law that would add just such a clause. Of course, to anyone who understands what’s going on, that’s ridiculous. Four simple lines of code to remove a javascript popup should not be considered a tool for infringement, but it is.

Of course, that got me wondering. I tend to use the always excellent NoScript extension when browsing, which turns off javascript, except on a few key sites where I enable it. If the stories about the NYT paywall being done in javascript are true, then I’ll simply never run into it at all, no matter what I do.

So, here’s the question: have I broken the law by using NoScript? I’ve used it for years, and it seems pretty ridiculous to claim that I now need to specifically go and whitelist the NYTimes just because it wants to hit me with an incredibly porous paywall. But, technically, I could see how an argument could be made that merely using NoScript makes me a DMCA violator by “circumventing” technical protection measures. Does this also mean that NoScript — an incredibly useful tool — has suddenly become a “circumvention device” overnight, because the NYTimes programmed an incredibly stupid paywall in javascript?

What this really should highlight is the massive problem with automatically outlawing all “circumvention” and “circumvention devices.” It leads to particularly dumb situations like this, when a clueless newspaper puts up an amazingly poorly thought out paywall in a manner that makes very little sense.

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Comments on “Am I Violating The DMCA By Visiting The NYTimes With NoScript Enabled?”

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113 Comments
RD says:

Re: Re: Re: Unwittingly

“Oh crap. I need to think up another Techdirt login name in case this one gets seized to stop me from using this tool to commit any more crimes.”

Yes you will, you dirty fscking criminal! Remember, accusation=guilt, third parties are allowed to bring criminal proceedings for relief (in the form of ICE/DOJ) to civil matters, the government’s right to prosecute > (greater than) your right to constitutional protections or relief, your domain is forfeit at the whim of a judge based on ZERO evidence (and based on only the affirmed say-so of the aforementioned 3rd parties), and you are branded the child molesting pornographer that everyone knows (or will now come to believe you are) you are.

Welcome to the 21st century even Orwell couldnt envision.

Jose_X (profile) says:

Re: Re: Unwittingly

>> He is no longer innocent though as he has thought about and we aren’t either as we have read it,

My front yard has one of those thin wire mesh fences along its perimeter.

Just inside the fence section bordering the public sidewalk I keep a table with a sign:

“Don’t lean over and look at these copyrighted paintings just in front of you on the table. A fence plus the flat position these paintings are in block off direct sight by the public. Circumventing this protective measure to engage in unauthorized viewing will result in 100,000 fine and 5 years in jail. Thank you.”

chris (profile) says:

Re: Re:

Isn’t there a requirement that the DRM has to be effective before it’s covered by the law that says you can’t bypass it?

according to this:
https://secure.wikimedia.org/wikipedia/en/wiki/Anti-circumvention

Section 103 (17 U.S.C Sec. 1201(a)(1)) of the DMCA states:

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

but does it mean that the technological measure has to be effective? as in, does the measure have to succeed in preventing access?

or does the measure just have to mean to have the effect of preventing access? as in, my poorly written program want meant to have the effect of preventing access, even though it fails to do so.

i’ll bet a lawyer for the NYT will insist on the latter.

blaktron (profile) says:

Its not a circumvention device

As it was not designed to get around technical circumvention…. if it was then any older browsers would technically be circumvention devices, as would browsers on devices that dont support full javascripting. Also, how about the default security settings on Windows Server? I think there are so many devices that circumvent this paywall that any challenge would be meaningless…

crade (profile) says:

Re: Re: Its not a circumvention device

not that it matters, I could be using a special hacker program, a generic hex editor or a properly placed french fry to circumvent, the design of the tool isn’t important, as I understand it’s the actual circumvention that the law looks for not the original intent of any of the tools you use to do it.

crade (profile) says:

Re: Re: Re:2 Its not a circumvention device

It’s simple. You don’t have to use a circumvention device to circumvent. You can do it the McGuyver way with chewing gum and toothpicks. The circumvention itself is what is addressed by the law. What is and isn’t considered a “circumvention device” is addressed completely seperately as whether or not circumvention has occured.

Anonymous Coward says:

Re: Re: Re:

The Internet is about connections, because it’s a communications platform, and when one decides to not connect to the rest of the Internet then their is an increased chance of failure in the long run.

Unless you’re the Wall Street Journal or the Financial Times but I think that has to do with money and status.

RikuoAmero (profile) says:

Re: Re:

its not a case of grand villainy, its a case where we have one of the most popular news websites in the world, that has since its inception offered its articles for free to the end user, now suddenly wants to start charging for them, but is not offering any incentive to the reader to actually pay.
Yes, this will be a financial failure. We are not opposed to NYT making money, we are opposed to NYT making completely idiotic moves like this. Read a few articles back here on techdirt, one of the top guys at NYT says people will pay because they feel guilty. THIS is what we are opposed to. We are opposed to complete idiocy and top level executives who spew forth complete and utter bullshit, and expect their ridiculous business plan to work.

Anonymous Coward says:

Re: Re:

I don’t under stand why you people don’t seem to understand what the article is about. I believe that the subject is explaining what the question was. If NYT wants to put a paywall in to protect there content that is fine. The question is if because many people use standard safety procedure such as NOScript, so that malicious content won’t secretly run on a computer, will that be considered a violation of DMCA since it also goes right through NYT’s paywall.

fogbugzd (profile) says:

Re: Re:

I don’t think the typical TD’er is against the NYT making money off its own content. A lot of us make at least some money off of our own content in one way or another. TD itself makes money off of its content, and no one objects at all. Most of us want musicians, authors, actors, directors, and other artists to get paid for their work.

I dont’ think most of us are even angry with the NYT. We are, I think, amused. It is kind of like seeing a banana peel lying on the sidewalk. We know someone is going to slip on it eventually. If we could pick it up we would, but we can’t reach it. We can yell and holler to people to be careful, but no one is listening. Since we are pretty sure someone is going to slip on it eventually, all we can do is sit back and watch the show. Maybe we shouldn’t be enjoying watch someone fall, but we know that the people who will be tripped up are likely to be arrogant stuffed shirts who are ignoring the world around them.

The unifying theme to the TD perspective is that the Internet and digital media have changed market for many products. There are some ways to make money in the new market, but they are different. We celebrate the new economics and frequently share success stories. I think if Mike had his way, TD would be mostly about sharing the new and innovative methods people are using to share their crafts and make a good living at it.

TD tends to go negative when we encounter stories that involve the people who refuse to adapt to the new realities and try to roll back time to an era when their old business models let them rake in lots of cash. Typically, those are gatekeepers or artists who made it big under the old system. The NYT is trying to do that. The thing that I find most amusing is that the folks promoting the paywall don’t even seem to understand what made their old business model work.

Jake says:

Re: Re:

I think that’s a slight exaggeration; he’s never seemed to make it out to be “grand villainy”, though I dare say it’s highly inconvenient for anyone who’s ever cited a New York Times article in a blog entry or other opinion piece and wishes to provide a reference to the full text of their source. (I don’t know much about Techdirt’s behind-the-scenes setup, but I’m going to take a wild guess that Mike hasn’t got any interns to edit all the now-defunct URLs in the site archives for him.)

Mike Masnick (profile) says:

Re: Re:

I don’t understand why you people are opposed to NYT wanting to make money off of its own content. Every website has the right to find a way to monetize its product. If it fails, it’s because people decided not to buy it, not because erecting a paywall is some sort of work of grand villainy as you make it out to be.

No one’s opposed to the NYT wanting to make money. We’re just pointing out that they’re doing it in a way that won’t work.

Anonymous Coward says:

Re: Re: Re:

http://timothyblee.com/2011/03/21/shoe-leather-reporting-at-the-new-york-times/

[E]ven if you believe that a purely advertising-supported web won?t be able to support an adequate amount of shoe-leather reporting, voluntarily subscribing to a paywalled Times, despite the existence of high-quality, free alternatives like CNN and the BBC, seems silly. If serious news is what I want, then I should donate to an organization that focuses on producing it. About 65 cents of every dollar I give to Pro Publica will go to support serious, public-interested newsgathering. It makes no sense to instead give money to an organization that will spend less than 20 cents of every dollar on shoe-leather reporting as a means to its primary goal of making the Sulzberger family wealthier.

Chris-Mouse (profile) says:

Re: Re:

I don’t understand why you people are opposed to NYT wanting to make money off of its own content. Every website has the right to find a way to monetize its product. If it fails, it’s because people decided not to buy it, not because erecting a paywall is some sort of work of grand villainy as you make it out to be.

Nobody here is objecting to the NYT trying to monetize it’s content. What we are doing is pointing out just how stupidly the NYT is going about doing it.
Expecting people to pay to read the NYT when the same stories are covered by others elsewhere for free is simply dreaming.
A paywall with so many loopholes and exceptions that nobody has any idea when or if they will hit it is nuts.
A paywall that’s so insecure that many people will accidently bypass it is laughable.
There are many ways to make money from content. The NYT seems to have figured them all out, and then gone and done the exact opposite.

crade (profile) says:

Re: Re:

You are still circumventing, no matter what you call the method you are using. If you are through a technological “protect measure” and you didn’t use the intended key provided by it’s maker, you circumvented it, plain and simple. You don’t need to use “circumvention tools” (ie: a computer) to be circumventing.

Jose_X (profile) says:

Re: Re: Re:

>> If you are through a technological “protect measure” and you didn’t use the intended key provided by it’s maker

Do not read any other sentence of this copyrighted comment unless you buy access to it by going to this link: http://moneymakerheaven.lawyerswhosueyou.xoxo/comment-purchase-for-josex-comment-number-2-at-www.techdirt.com/articles/20110322/03485913583/am-i-violating-dmca-visiting-nytimes-with-noscript-enabled.shtml .
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Do you honestly think circumventing my technological protective measure, which are bypassed when you “use a technological mouse pointing device, keyboard, or similar means to ‘scroll’ down to read the comment protected by a full blank screen barrier,” will really make my lawyers happy?

David says:

If the NYT put a header on each article that said “YOU ARE FORBIDDEN TO READ THIS UNLESS YOU HAVE PAID” and then rendered the full article anyway, your browser would be a circumvention device for rendering the whole page despite the dire warning at the top.

Maybe the Times is trying to undo the entire DMCA by showing how incredibly st00pid it is…?

Trails (profile) says:

Re: Re:

It wasn’t cash outlay. It’s an estimation based on cash outlay, and hours spent.

Many of those hours spent probably included conversations like:

“This is dumb”
“But we need money!”
“This will not make us money”
“But just think, we get 100 million hits an hour, if just 10 percent of those subscribe, our annual revenue will dwarf many countries’ GDP!!!”
“But that won’t happen”
“But it might!”
“But it won’t.”
“But it might!”
“But it won’t.”
“But it might!”
“But it won’t.”
“But it might!”
“But it won’t.”
“But it might!”
“But it won’t.”

etc…

Jose_X (profile) says:

Re: Even better question

>> They SENT the article to me when I loaded their page, contained within the page request. How could it be illegal to then look at it?

There was a post-it note on the article they sent over when your computer took advantage of the service they were offering the public through their web servers.

“Do not read this article we are sending over unless you first send us payment. For your convenience, we may have folded the page in half to make it less likely you will accidentally read the page before paying.”

Clearly it is illegal to unfold the page they handed you, if in fact it was folded, and read it without paying.

Jose_X (profile) says:

Re: Simple Test...

>> Do you feel guilty?

What if I just feel regretful?

I feel lots of regret that I paid for their home-delivered paper all of these years while I was making lots of money rather than saving my pennies for the lawsuit that came once I dropped my subscription and regretfully visited their site with a disabled browser.

Note, I’ve never subscribed to the Times, but then I don’t expect to be sued by them either should I read their articles online.

Anonymous Coward says:

What if someone disabled javascript in their browser’s settings? Even Internet Explorer allows you to block javascript by default, and enable it for a list of trusted sites.

…I’d probably die laughing if IE7 was classified by the US government as an “illegal circumvention device”. Chrome has the same thing though, so I guess Google would step in before anything big went down.

rooben (profile) says:

If any lawsuit comes of this, and NoScript is classified as a circumvention device because of the way NY Times is coded….
Then I have a new business model:
1. Create some content & copyright it.
2. Go look for companies that make plugins.
3. Analyze plugins for software that disables things
4. Build a Paywall that can be disabled by the plugin.
5. Encrypt Content
6. Contact the plugin developer, and let them know that their software is in violation of DCMA, because it could be used to circumvent your copyright protection. You won’t sue them, if they pay you $10,000 (or $100k, or $1m, depending on the size of the company). Then you change your paywall design to use the next plugin. Repeat.
This can be used for permanent markers as well.
Your welcome, Internet.

Cow Lard says:

Incompetence? Really?

Quote:
Competent programmers cost $50-100 per hour.
Incompetent programmers cost $40MM per project.

__________________________________________________

The $40 million price tag charged by the incompetent programmers, were staff contracted by devious greedy FAT RATS who love Paywall Swiss Cheese, and have a remarkable ability to spin the masses TONS of BS as well as write of $40 MM on their tax return.

Look just because their idiots, doesn’t mean they’re incompetent with money. The paper money is vaporware, it doesn’t exist in real terms.

The masses have been drip fed their fix from a bunch of news peddlers who now want to charge their addicted captive market. GET OVER IT! Move on, there is a trillion other news sources out there. Anyone would think from all the commotion they had something worthy to write about. ; )

The DRM argument doesn’t stand, as its instrument of rights management is not adequately covered by what the courts definition requires of it in order for the law to be applied.

But hey, we won’t let that get in the way of a good story will we?

Michael (profile) says:

Re: Incompetence? Really?

Are you seriously blaming the programmers?

I have worked for (and do work for) several companies that make…well…decisions?…similar to the ones the NYT has made with this paywall. What I can tell you is that at some point – possibly after exhausting every avenue of trying to explain the problems – most programmers end up having to do what they are told.

I can almost guarantee that they received their instructions something like this:

1) Design and build a paywall
2) Hey! This new fangled JavaScript is really cool! Use that!
3) Oh, make sure the paywall will not prevent people from getting to it if they follow a link from their friend on Facebook.
4) Oh yeah. That same thing as #3, except that new thing – I think it’s called ‘MySpace’ (since I am a big executive, I should have a MySpace account, so make me one of those while you are at it).
5) Please send me a memo explaining Twittle.
6) Stop mocking me and send a memo explaining TWITTER
7) Yeah, make twitter links allow content
8) You know, people should be able to see a certain number of articles before the paywall kicks in – our writers seem to be complaining that a paywall is going to make them ‘irrelevant’ (whatever they mean by that, come on, they work for the NYT). We will come up with the number of articles they can read later.
9) Is it too late to switch from JavaScript to this iPad thing? They are almost the same right?
10) Please send me a memo explaining what HTML is.
11) We would like a functional demo tomorrow morning. Before you create it, can you change all of the fonts and colors to a more “Autumn” look – it will look better in conjunction with the view out of the boardroom window.
12) Why did we miss a milestone?
……

need I go on?

Thursty (user link) says:

you have to make a reasonable effort

I would imagine that it wouldn’t be a copyright violation as you are not copying and redistributing or rebroadcasting the content in any way, shape or form. It would be similar to walking into the movie theater without paying, and in this particular case, it would be doing so when the theater operator failed to man the ticket booth and left the entrance unattended. At that point is entering and watching a crime? I don’t think so.

It’s up to the business itself to enforce access control, and if that access control is like a screen door on the submarine, can you blame the water for rushing in?

Anonymous Coward says:

When you walk down the streets of any major city or even in some major stores there are people standing there trying to shove a pamphlet at you hoping you’ll take one. No Script is like shooting these pamphlet pushers so you don’t need to try to walk past them.

Next, not extending your hand to accept one of these pamphlet will be considered a “circumvention device” under the DMCA.

G Thompson (profile) says:

Client side scripting is yours to unauthorise

Is disabling Javascript for viewing the NYT a breach of the DMCA? or any statute either USA or International for that matter?
NO

Could the NYT be violating the Computer Fraud and Abuse Act by forcing people to USE Javascript and then pay?
Most likely

Now before all you lovers of trolldom take umbrage with the above statements, please note that if the NYT was using such technology like PHP, Perl, Java, C+ then the above answers would very much be reversed.

Why the reverse you ask? Because the major difference and the only relevant part to those languages and this discussion is that PHP,Perl et. al. are what are called server-side languages with Javascript being a client-side language/script. This means that the javascript RUNS and is controlled SPECIFICALLY via the readers computer under their AUTHORITY alone.

Whereas the others are controlled by the organisations server (in this case the NYT) only and require the organisations authorisation to disable.

If an organisation tries to without due authority make your computer do things that you never agreed to, or have ceased to agree to. Remember you have not agreed to any type of contract, and I highly doubt any contract you could agree to would withstand scrutiny ( and this includes EULA’s), and can at a moments whim stop your client performing any tasks that you do not want.

Jose_X (profile) says:

Re: A very high bar of inventiveness will be required

Having a high bar of inventiveness like that has worked to deny patents oftentimes for inventions that are obvious to a person having ordinary skill in the art.

If a person having ordinary skill in the art finds something non-obvious, then clearly we should enable long-lasting related monopoly powers to take effect.

What does society have to lose from having inventions that are non-obvious to a person having ordinary skill in the art be monopolized for many years?

The US economy needs a boost.

Do you have ordinary skills in the art?

Is there something you know about that you have found non-obvious?

If yes, consider spending thousands of dollars to secure a patent that will allow no one else under US jurisdiction the ability to also use, create, sell, or seek to sell such an invention that a person having ordinary skill in the art, such as yourself, found non-obvious.

This is a recipe for American success. American lawyer ingenuity at its best.

Michael (profile) says:

Great Question

It is a good question. Unfortunately, I think the answer is probably yes.

We certainly do not want to have the court deciding if something is a digital lock (or a lock) based on whether or not it is effective. Moreover, we would certainly not want the courts determining what is and is not effective enough.

A lock is a lock. Some fuzzy interpretation of what qualifies would be pretty horrifying.

It’s really amazing that anyone can defend this circumvention clause when doing something as normal as having NoScript running can be in violation.

Jason says:

It is javascript on purpose. We are not even trying to implement further countermeasures to prevent people getting around the wall. Because we don’t care. The paywall at its heart is a marketing gimmick to retain formerly lost print subscribers. Why in the hell do you think it is cheaper to get the Sunday only paper then All digital access. You get all digital access free with Sunday paper.

We are well aware that there is hardly anything stopping people from going around the payhole.Its quite pathetic actually. We don’t actually want people to buy digital subscriptions, just print subscriptions.

Ryan says:

Posting property

In my state (a very rural one) it is legal to walk on another persons land as long as they don’t have it posted with no trespassing signs. You can’t just post one sign near your house either, they have to be posted at regular intervals along the border of your property.

It seems like the NYT paywall is analogous to posting a single no trespassing sign on your mailbox and then expecting some stranger walking along the road to know about it.

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