The New York Times has racked up a lot of praise — including some from Om — for its ground-breaking multimedia experiment “Snow Fall,” which showcased a lot of design elements many media companies might want to emulate. And since others might not have the same abundant resources as the NYT, one developer decided to use the project to show how those publishers could reproduce some of the same kinds of effects more cheaply.
What did he get for this suggestion? Not one, but several cease-and-desist letters from the New York Times‘ legal department. This falls under the heading: “How to blow some free publicity.”
Cody Brown is the founder of a New York-based startup called Scroll Kit, whose software makes it easy for publishers to produce interesting layouts without having to do a lot of programming. When he saw the Snow Fall feature, he thought it was the perfect example of what his software could help media companies do, so he created a video showing how he replicated the design elements of the story.
An order to remove any mention of the NYT
In a blog post at Medium, the Scroll Kit founder explains what happened next: he got a “cease-and-desist” letter from the New York Times‘ legal department saying his video was an infringement of the newspaper’s copyright to the Snow Fall content, and demanding that he remove it.
This request isn’t that unusual. Media companies send these kinds of letters all the time — although, as Brown notes in his post, there is at least a chance that using the newspaper’s content in the way he did would be covered by the “fair use” exemption, since it didn’t compete with the original NYT content and was arguably transformative. But since he didn’t have the resources to fight such a case, he made the video private and assumed that would end the matter.
Instead, he got a second letter saying that marking the video as private was “not acceptable to The Times” and that it had to be removed from YouTube and any other site. Not only that, but the NYT lawyer said that Brown had to “remove any reference to the New York Times from your website,” (boldface added by me for emphasis) including a line about how the newspaper had spent hundreds of hours building Snow Fall but it took him an hour to recreate.
It’s not infringement, it’s a tribute
As Brown discusses in his post, the first of these requests is debatable but arguably fair, since he used the entire New York Times feature rather than just an excerpt. But the second letter goes above and beyond any fair interpretation of copyright law and tells the Scroll Kit founder that he needs to remove any reference to the NYT from his website. This is absurd, of course, and not even remotely reasonable, despite attempts by people like Paul Carr to argue that it is.
Nilay Patel, a copyright lawyer who writes for The Verge, told the Poynter Institute that the order to remove any reference to the newspaper was “based on nothing more than a sense of moral outrage” — which just makes the whole thing even more ridiculous. And a third response from the NYT’s legal department reinforces the point, by asking Brown to “use another publication to advertise your infringement tool.”
As I (and others) tried to explain in a Twitter debate with Carr, this completely misunderstands what Scroll Kit is, or the purpose of showing how Snow Fall could be replicated using it. The software isn’t “an infringement tool” any more than a piece of HTML design software like Dreamweaver is an infringement tool. All Brown was hoping to do — as I see it — was to pay tribute to the New York Times feature, and suggest that other publishers could do something similar (the CJR has pulled together most of the conversation, if you’re interested).
Note: The New York Times responded to our request for a comment by saying: “We fully support innovation, but we prefer that this developer use his tool to create original material instead of appropriating our content, copyrighted content that was conceived and created entirely by Times journalists.”