Wall Busting Canadian Gets C&D Letter from "NYT"

(Nieman Journalism Lab)

A clever Canadian named “Dave” Hayes, with a previously obscure blog, has written a four line Java script over his lunch hour that, apparently, can crack the controversial New York Times $40 million paywall. You simply drag and drop it into your bookmarks toolbar, and then click on it when necessary. It apparently works. Since it needs a file name to be a part of your bookmarks, he called it “NYTClean”. The New York Times is not amused and does not think that this filename is fit to print - even on your computer screen.

One might have thought that the NY Times might have had some thoughts about inducing or authorizing copyright infringement, or maybe even the dreaded DMCA . However, as Americans are constantly astonished to learn and Canadians constantly need to be reminded, the DMCA does not apply (yet) in Canada, which is still a sovereign country despite the tireless efforts of many copyright reform lobbyists.  I’m not commenting here on how such copyright theories would play out either in Canada or the USA.

However, the NYT (if I may refer to it that way) is apparently less upset about the efficacy of Dave’s four lines of code that can apparently blow away the NYT’s $40 million game changing “investment in our future” paywall with one click than Dave’s alleged “trademark dilution and trademark infringement under U.S. and Canadian trademark law”. NYT’s counsel has sent Dave a C&D letter - see below. 

This is rather odd, for lots of reasons. For example:

• According to the Supreme Court of Canada no less,there is no such thing as the American “trademark dilution” doctrine as such under Canadian law;

• Moreover, Dave isn’t even “using” the letters NYT as a trademark, because Dave isn’t selling newspapers or online news reports; and, 

• “NYT” isn’t even registered as a trade-mark in either the USA or Canada, which, though not conclusive, is very telling indeed.

Anyway, I seriously respect and even love the New York Times. It's hard to see how the world could do without it. I actually understand that some newspapers are having a hard time adapting to the internet. But, at last report, the internet is here to stay, which may not be the case with all newspapers, or record companies for that matter, that do not adapt to it. 

Moreover, I am personally rather conflicted about the NY Times paywall, since I sincerely hope that the NY Times survives and indeed proposers. However, I (and many others - see Arianna Huffington here and here ) believe that its  paywall is an awkward and ineffective attempt in the wrong direction. I am certainly not flattered or thankful that this paywall was beta tested on Canadians. Could this have been because Canadians are too polite to protest, eh?

Well, Dave is apparently one uppity wall busting Canadian. If a clever Canadian can write four lines of pay wall busting code over lunch hour, and get attention around the world, and the best that the NYT can come up with is a "trademark dilution and trademark infringement" C&D email, then we should pay attention to “Dave.”

And, of course, the NYT has apparently forgotten about the Streisand effect of problematic C&D letters. They have a way bringing unwanted attention to the very activity that the author wants to C&D. Dave is getting lots of attention, including in Time and at the Nieman Journalism Lab.

And, in this case, this is nothing if not ironic. Remember the first law of email - “Never hit the send key on anything you couldn't live with on page one of the New York Times” (aka NYT).

Anyway, here’s the NYT's letter:

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

HK