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Goodbye, NYTClean, hello new name? A Canadian coder gets a letter from the NYT’s legal department

Remember David Hayes, the Canadian coder who, when confronted with the new New York Times paywall, figured out a way to evade it with four lines of JavaScript? (Technically, only three lines of code and one line of comment.) We wrote about it at the time as part of our coverage of the paywall.

Well, according to David’s blog, the Times has reached out to him in the form of an email from its legal team asking him to stop offering his JavaScript bookmarklet under the name NYTClean. But that’s the interesting part: The Times’ only stated complaint is the name of the bookmarklet, not its existence.

Here’s the text of the email, according to David’s blog post:

I am writing concerning your “NYTClean” bookmarklet, posted at http://euri.ca/2011/03/21/get-around-new-york-times-20-article-limit/.

As you obviously know, The New York Times Company has used its ‘The New York Times’ trademark since at least as early as 1851 and today offers numerous products and services under its famous ‘The New York Times’ trademark, including its online version of The New York Times at the URL NYTimes.com, and various blogs and electronic media products. NYTCo’s NYTimes.com website receives over 15,000,000 unique visitors each month. NYTCo owns numerous registrations for its ‘The New York Times’ trademark in the U.S. Patent and Trademark Office and Canadian Trade-Marks Office and these trademarks are among the company’s most valuable assets.

We object to your use of our famous “NYT” trademark in connection with your application and your promotion thereof, which constitutes trademark dilution and trademark infringement under U.S. and Canadian trademark law.

Accordingly, we ask that you immediately cease use of the “NYT” trademark in connection with this application. This email is without prejudice to any action that may be necessary to protect the valuable rights of NYTCo in its intellectual property.

Very truly yours,

Rxxxxxx Sxxxxx
Senior Counsel
The New York Times Company
[Contact information followed]

The trademark claim follows on the Times’ similar request to Twitter regarding the @FreeNYTimes account’s use of a Times logo as its Twitter avatar. (The issue was apparently not, as was reported, with @FreeNYT, which is unrelated to @FreeNYTimes.) In both cases, the actual workaround wasn’t the issue — the use of a Times trademark is.

Now, of course, the NYT’s concern over its trademarks doesn’t limit its ability to come back later with another legal claim. But if any evasion method so far was going to prompt a Times claim under the Digital Millennium Copyright Act’s anti-circumvention rules, NYTClean was a prime candidate. Those rules place limits on the use of tools to get around DRM, which in the right light the Times paywall could be considered. (To be clear, the Times has, to my knowledge, never mentioned the DMCA as a possible weapon against paywall jumpers. But the possibility has been a topic of conversation in the technology community.)

Here’s the DMCA language:

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

…to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. [Emphasis mine.]

Invoking the DMCA would be breaking out the big guns, and would no doubt cause a backlash against the Times. Its attorney’s email shows no signs of such a claim, which fits well with the tone the Times has struck on potential paywall evaders since before the U.S. launch: that it will “continue to monitor the situation” but doesn’t plan to plug any of the many leaks in the wall.

Personally, I think the Times is taking the right approach here, since the actions of people who use JavaScript bookmarklets aren’t likely to have any impact on those of the Times’ readers who might actually pay. (Although NYTClean, unlike other evasion methods out there, leads the Times to serve a story page without ads. Even though that’s not something intentional in Hayes’ code, it’s still obviously suboptimal for the paper.)

For his part, David Hayes says he plans to comply with the Times’ request and rename the script to something like NYNewspaperClean. But he also says the Times missed an opportunity:

I’m a big fan of the newspaper in question; I would’ve taken the page down in exchange for a manila envelope with leftover detritus from Bill Safire‘s old desk.

                                   
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Joseph Lichterman    July 22, 2014
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