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:

First of all, there’s a tremendously strong fair use argument here. Nothing in what Scroll Kit did with the video competed with the Snow Fall story in any way shape or form. The video was just a demonstration of its product and how you could use it to create a Snow Fall like experience. Still, the folks at Scroll Kit decided that fighting the NY Times wasn’t worth the trouble, so they took down the video and sent off an email to the lawyer saying they had complied. But, apparently that wasn’t enough for Deborah Beshaw-Farrell of the NY Times’ legal department, as she sent off another letter, still complaining:
The first letter was bad, but this one is downright ridiculous. Switching the video to private should certainly be enough. But, the claim that they need to remove any reference to the NY Times from the website, including a factual description of reality is completely bogus. It’s just the NY Times acting as a legal bully. Brown publicly asked the NY Times to reconsider, noting that if it believes so strongly that things like Snow Fall are the future of news, it’s pretty ridiculous for them to try to intimidate and shut down a startup looking to make that process easier.

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:

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

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 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.

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Companies: ny times, scroll kit

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96 Comments
Anonymous Coward says:

The NYT is hardly being ridiculous. Scroll Kit used the Times’ content to create a demo for selling their own product. And they didn’t even take the replica down: https://www.scrollkit.com/s/Cy0mzoK
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-copyright-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.

Rob says:

Re: Re: Re:3 Re:

How is this an infringement tool? It’s a simple website generator that can be used to produce scrolling webpages with animated/video backgrounds.

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!

G Thompson (profile) says:

Re: Re: Re: Re:

What? The same Times lawyer(s) who have basically said their can be no reference ANYWHERE whether private or otherwise of the product that the NYT designed nor of the NYT itself nor of FACTUAL DATA about the idiotic text that the NYT did in first place..

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

JMT says:

Re: Re: Re: Re:

“The Times lawyers specifically stated they would be okay with use of a different publication’s content…”

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?

anonymouse says:

Re: Re:

IS ti not common for people to acknowledge those that came before them and encouraged them to produce a piece of software that would help design something new and compelling.

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.

Anonymous Coward says:

Re: Re:

{Is it possible} that NYTimes plans to sell SnowFall to other news agencies around the world (a word in and of itself that has for eons meant a phenomenon occurring in nature of frozen water particles in the atmosphere creating complex ice crystals falling to earth and more recently a result from ionospheric experimentation around the world) and also plans to corner the market, stopping any attempt of possible competition in this new style of news presentation market, stifling even more innovation from others wishing to create new techniques?

DannyB (profile) says:

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!

jupiterkansas (profile) says:

Re: Re: Re: Copyright to promote the useful arts and science

  • so when and artist dies, and their children dies, and maybe even their grandchildren die, so that nobody cares any longer about the artist’s precious work but it is still under copyright, it will be given to a lawyer to manage, or else remain legally inaccessible to anybody in any way.
TheLastCzarnian (profile) says:

Re: Re: Copyright

Looks like he copied about 100 lines of text from the NYT story. The basic graphics and video are coming from the NYT site directly. His tool is doing the effects.

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!!!)

horse with no name says:

Re: Re: Re: Copyright

Where is the fair use? This is being used to sell a commercial product. The NYT has every right to ask not to be part of this, and has every right to ask not to have their copyright work used as part of it.

Please show the actual fair use here, pointing to the fair use laws to explain.

anonymouse says:

Re: Re: Re:2 Copyright

Please could you show me where copyright law prevents Scroll from using this content as an example of their software’s potential. If anything this is clear fair use to me and obviously to most who have read this story, so please help us understand where you are coming from by providing a link to the specific part of copyright law that prevents them from showing the NYT content as something that is possible with their software.

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.

horse with no name says:

Re: Re: Re:3 Copyright

Let see. The content was created by NYT. Check. They hold the copyright. That’s all they need on the face.

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.

Niall (profile) says:

Re: Re: Re:4 Copyright

Well, if you wish to say that you can reproduce a similar effect (note: I haven’t been able to see either) a lot simpler and cheaper (which NYT might well be interested in for their own purposes), then using a selection of the original content may well be seen to be more useful.

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.)

nasch (profile) says:

Re: Re: Re:4 Copyright

I am still waiting for someone to clearly state why using NYT’s content and name is fair use here.

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.

Anonymous Coward says:

Re: Re: Re:5 Copyright

1, purpose: sell subscriptions to Scroll Kit – fail
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)

Dean William Barnes (profile) says:

Re: Re: Re:4 Copyright

“Fair use? I am still waiting for someone to clearly state why using NYT’s content and name is fair use here.”

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.

Anonymous Coward says:

Re: Re: Re:5 Copyright

An infomercial is hardly a transformative work. And Andy Warhol and Campbell’s Soup are in two entirely different industries. Scroll Kit is making a tool to create content that competes with the NYTimes. (Sure, the Times could adopt the tool or something like it, and probably should, but that only reinforces the market impact argument.)

Anonymous Coward says:

Re: Re: Re:3 Copyright

Not intending to commit a crime is not a defense for committing a crime. Even if Scroll Kit weren’t intending to monetize this, though they clearly are, the effect would be that they are actually benefitting commercially, directly from this promotional material. I have yet to see a no infringement intended declaration hold up in court.

nasch (profile) says:

Re: Re: Re:4 Copyright

Not intending to commit a crime is not a defense for committing a crime. Even if Scroll Kit weren’t intending to monetize this, though they clearly are, the effect would be that they are actually benefitting commercially, directly from this promotional material.

Commercial use is only part of one of the four factors used to determine fair use.

Anonymous Coward says:

Re: Re: Re:5 Copyright

Right, and the only factor that’s debatable is market impact. It’s a substantial portion of the exact content for commercial purposes. Why do radio programs have to pay for background music? Why do graphic designers have to pay for stock photography? If Billy Mays wanted to use content in one of his infomercials, you bet your ass he would have licensed it first.

Anonymous Coward says:

so who has advised the ‘makers’ of Scroll Kit as to what road to go down? whether the NYT has any case/grounds to send the letters, what response should go to NYT, if any at all and what do they do next? there is so much of this shit going on. Congress could have put provisions into the law so that this sort of thing never started to happen, but they didn’t, for fairly obvious reasons. they have the opportunity of putting their original screw up right but wont, for fairly obvious reasons. so where does that leave everyone? in the same position as always where the one with the deepest pocket always wins! and again, as always, everyone loses out on inventions and innovations that might have been but instead, dont see the light of day

anonymouse says:

Re: Re:

How are we all supposed to know what is fair use or not when even the top lawyers who work with this as a profession day in and day out do not know when it is fair use or not.

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.

GMacGuffin says:

NYT Legal Dept. MO / Perverse Incentives

I have dealt with the NYT over claimed copyright issues regarding its content. What I surmise as a result is:

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.

DanZee (profile) says:

Use Your Own Content

Well, Tech Dirt has written many times about companies using copyrighted artwork in their ads. Last week, there was a story about a copyright organization using a copyrighted piece of art they didn’t ask permission to use. But now Tech Dirt says it’s all right to steal something off the Times’ Website and use it to sell a product? Eh, it seems a bit hypocritical.

anonymouse says:

Re: Use Your Own Content

How can you steal something from someone when it is readily available to all at no cost. with no advertising either.

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.

Anonymous Coward says:

Re: Re: Use Your Own Content

The Snow Fall piece has ads, and is being monetized in other ways, I believe (Amazon Singles). Even if they were not monetizing it, the Times has copyright on the content. Regardless of your opinion of copyright, that’s the reality.

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.

philosopherott says:

copyright infringement

Hey guys, my lawyers have told me that because I have used these assortment of characters, or “words” in material that is copy written, that you can’t use them. I know that you are saying something that I did not and the “words” are in a diffrent order than what I had but this is clearly infringment, so please Cease and Desist while taking down any articles with the use of these “words”???

Claudia Putnam (user link) says:

This is the kind of thing that would get any company in trouble. When developing marketing materials, you always have to get signoff from the people you are using as a case study. Usually they are your existing clients. Even when they are, and you’ve done the work yourself, if you use them in your own promotional materials without their knowledge and consent you can face legal difficulties, not to mention customer-relationship issues.

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.

Gwiz (profile) says:

Re: Re: Re:2 Re:

How is this any different?

Mike already explained why he thought there is a strong fair use argument in the article:

First of all, there’s a tremendously strong fair use argument here. Nothing in what Scroll Kit did with the video competed with the Snow Fall story in any way shape or form. The video was just a demonstration of its product and how you could use it to create a Snow Fall like experience.

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

Anonymous Coward says:

Re: Re: Re:3 Re:

If that’s the case, why can’t I go to Flickr, download images, and use them in a TV advertisement? The ad wouldn’t be “competing” with the photo. And Scroll Kit actually had the replica available online, which is very clearly in conflict with the Times’ efforts to monetize.

Gwiz (profile) says:

Re: Re: Re:4 Re:

If that’s the case, why can’t I go to Flickr, download images, and use them in a TV advertisement?

Because the first factor would have to be considered also:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

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.

Gwiz (profile) says:

Re: Re: Re:6 Re:

Well, bad example really.

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.

nasch (profile) says:

Re: Re: Re:4 Re:

If that’s the case, why can’t I go to Flickr, download images, and use them in a TV advertisement?

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.

Anonymous Coward says:

Re: Re: Re:3 Re:

Actually a better example is if Apple used copyrighted video clips in an ad for iMovie. The software itself doesn’t compete with the videos, but it’s entire purpose is to create content that does compete. The “does not impact market” point is not so clearly answered. Mike even acknowledges this sort of potential market impact in the last paragraph, but then dismisses it under the mistaken idea that the NYT objects to the tool itself. At no point have they attempted to shutdown the tool. Even for lawyers, they were very clear that their problem is unauthorized use of content and framing the tool as a way to infringe on their copyright. Scroll Kit wasn’t being described as a tool to “create a Sow Fall-like experience”, but as a tool to “create Snow Fall”.

Gwiz (profile) says:

Re: Re: Re:4 Re:

….framing the tool as a way to infringe on their copyright.

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?

nasch (profile) says:

Re: Re: Re:5 Re:

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 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.

Anonymous Coward says:

Re: Re: Re:5 Re:

The analogy is flawed. It’s not about making a comparison between two competing products. Scroll Kit isn’t competing with the NYTimes CMS. It’s about using copyrighted content to promote a commercial service without permission. Not to mention playing victim for the attention.

nasch (profile) says:

Re: Re: Re: Re:

So why is it not okay for those copyright enforcement companies to use copyrighted photos on their website without permission?

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.

Anonymous Coward says:

Re: Re: Re:2 Re:

There was a company that tracks downloads and sends letters to ISPs that was caught using an unauthorized photo on their website, and the Internet went apeshit. Same situation here, but with the big company being the content owner and the little guy the one doing the infringing, so the Internet’s opinion is reversed.

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