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Summary:

The New York Times’ legal response to a startup whose software allows publishers to replicate the look of the NYT’s Snow Fall feature goes so far above and beyond a simple cease-and-desist it becomes ridiculous.

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.

Judge with gavel

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.

Snowfall copyright notice1

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).

Unless the New York Times is arguing that it is a crime to even attempt to duplicate the look of Snow Fall by other means (which, as David Holmes pointed out, doesn’t require Scroll Kit but can be done with readily available Javascript libraries) then all it has done is made the newspaper look churlish and unable to take a compliment — and fairly clueless about software to boot.

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.”

Post and thumbnail photos courtesy of Flickr / Hans Gerwitz and Eva Blue

  1. I think the key phrase which explains the NYT’s apparent butt-hurt is Cody Brown’s – ‘The NYT spent hundreds of hours hand-coding “Snow Fall”. We made a replica in an hour.’

    They’re not so much upset about his use of NYT content to demonstrate what ScrollKit can do, as they are about his project taking a great deal of the lustre off of theirs, and the prospect of losing their ‘advantage’ over other papers.

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    1. It’s easy to clone– especially when you can read all of the javascript. I wonder how much of the NYT’s source code ended up in Cody Brown’s hour of work?

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  2. Yeah, the cease and desist letter was too much, but these folks weren’t really paying the NYT a complement. They simply copied something and bragged and bragged about how they did it in a few hours. If they didn’t include the gratuitous insult, they probably would have gotten away without the letter. Everyone knows that the initial development is much, much longer because you make so many mistakes. It’s easy to follow and copy.

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  3. If your market position is so easily unraveled by an imitation, I think you should be more worried about your position than the imitator.

    No “technological” advantage is sustainable. Surface features can be easily replicated, how they are used to meet client needs via meaningful content and content experiences is much more sustainable.

    Accept the compliment, and if you are truly worried about the competition, out compete the imitators on other grounds.

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  4. Like Bob said, this really wasn’t a tribute to the NYT, and given that “hundreds of hours vs. an hour” language, I can see how the NYT people might take offense. More tactful language might’ve helped address that (especially when you’re copying the ENTIRE package). But still, there’s a big difference between an insult and an infringement. The “remove all references to NYT” part goes way overboard. You’d have to purposely and grossly misinterpret the Scroll Kit site to see it as advocating infringement.

    As for whether this was fair use, another factor to consider is that Brown was using the NYT content to promote his startup, which makes it a commercial use, which is less likely to be considered fair use. One also wonders why it was necessary to copy the entire package, since a partial copy would likely make the point about the efficiency of the tool just as well while strengthening the fair-use claim.

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  5. Like Bob said, this really wasn’t a tribute to the NYT, and given that “hundreds of hours vs. an hour” language, I can see how the NYT people might take offense. More tactful language might’ve helped address that (especially when you’re copying the ENTIRE package). But still, there’s a big difference between an insult and an infringement. The “remove all references to NYT” part goes way overboard. You’d have to purposely and grossly misinterpret the Scroll Kit site to see it as advocating infringement.

    As for whether this was fair use, another factor to consider is that Brown was using the NYT content to promote his startup, which makes it a commercial use, which is less likely to be considered fair use. One also wonders why it was necessary to copy the entire package, since a partial copy would likely make the point about the efficiency of the tool just as well while strengthening the fair-use claim.

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  6. akismet-cd831e72adf0ddb9a54ec6a58ba639b4 Thursday, May 23, 2013

    I don’t think that Cody Brown was in any way minimizing the amount of work that the New York Times did in researching and writing the article. His point (and it could have been more politely stated) was that it’s no longer necessary to custom-write the software to create the scrolling effects that the Times used–instead, publishers can use Scroll Kit. Where the Times’s reaction “jumped the shark” was in demanding that he remove any mention of how much time Scroll Kit would save in creating a similar work, and in saying that Scroll Kit is a tool for infringement, which it certainly isn’t (unless the Times believes that the whole concept of scrolling windows on articles is their invention…in which case, let’s see their patent application).

    I’d like to see Brown post the same mockup that he did previously, just using lorem ipsum text and stock photos instead of the Times’s content. That would achieve his objective while eliminating any grounds for complaints from the Times. (And, if the Times does complain yet again, I’d love to see that go to court and watch the Times be handed its head.)

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    1. No. He was maximizing the NYT’s work to make himself seem cooler and his tool better. But it’s just a clone and anyone can clone something later.

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  7. Yep, I’m on the side of the NYT in this one. Cody could easily have used ‘lorem ipsum’ text to showcase the Scroll Kit. And while I agree that the kit isn’t really an infringement tool, it certainly was built using the hours of work the Times put into developing Snow Fall. I’m a big fan of fair use, even for commercial applications, but I don’t think that’s the point here. Good manners might have been in order on both sides.

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  8. NYT Helps Startup Reach Thousands, For FREE!

    Cody Brown (no relation) did not exercise the best judgement with his wording but I do not really see where/why the NYT is so upset. Cody should just ride it to the last moment and be grateful to the NYT for bringing his project to the attention of thousands of people who otherwise would have never known about it.

    I understand there is a lot of “hey look at this” attention towards Snow Fall. For me, it gets a “meh.” The layout and interface could have been done much better, I think I sprained my scroll finger going through it.

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  9. Am I the only person who realizes these type of designs have been around for years? It doesn’t even require Javascript – it can be done purely with CSS. I have no doubt the story itself took substantial money to produce, but better designs can readily be knocked out quickly.

    Should he have used their images/videos? No. Would they have won damages? Highly unlikely.

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