New York Times advances weird, self-destructive trademark theory to prop up its paywall

FreeNYTimes writes, "The twitter account I set up to broadcast data from the NY Times API, @freeNYTimes, was recently suspended, ostensibly for trademark infringement. But I set up a mirror at @freeUnnamedNews, which should be good to go because it doesn't use the paper's name in the feed. Right?"

Some background: the new NYT paywall allows for unlimited free article views for people following links from Twitter. The @FreeNYTimes feed created links to all the NYT stories, which meant that you could read the whole paper gratis, simply by following the feed (presumably, you could also create an index of Twitter URLs that corresponded to all the URLs on the Times's site, a kind of codex of free backdoors to the paper).

The NYT has many options to fight this sort of thing. They could program their firewall to restrict Twitter referers, or to simply block anything from the @FreeNYTimes account. Instead, the Times lodged an utterly bogus trademark complaint with Twitter -- bogus because trademark doesn't generically give you the right to stop people using your product or company's name; rather, it stops people from doing so deceptively. The Times's position effectively was that Times readers would mistake @FreeNYTimes for a big-hearted gesture from the Times itself, operated by the Times in order to defeat the Times's paywall. This is a stupid thing to assert.

It's also damaging to journalism: there are many trademark holders, from Sarah Palin to Dow Chemical, who'd love it if the NYT could only use their name with permission. There is no trademark confusion when the Times prints Sarah Palin's name; there is also no trademark confusion with @FreeNYTimes.

So now there's @FreeUnnamedNews, and there's no trademark basis to use to stop the account. The next step from the Times may well be to object on the basis "deep linking," and that is a doctrine that is nearly as damaging to journalism as the exotic trademark theory the Times has already advanced: for if plain true facts ("this page exists at this URL") are property, then the Times had better get its checkbook out, as there are plenty of true facts in every edition of the Times whose putative owners would love to get paid rent for them -- and there are plenty of true facts whose "owners" would love to deny to journalists altogether (think, for example, of the true facts surrounding political corruption). And, of course, in order to sue, the Times (whose reporters have gone to jail to protect their sources) will have to demand that Twitter turn over the personal identity of the FreeNYTimes/FreeUnnamedNews person.

On the other hand, the Times might just add more complexity (and more brittleness, expense, and false positives and negatives) to its paywall by instructing it to inspect Twitter referers in detail and reject those coming from @FreeUnnamedNews. Over time, the paper will compile quite an enemies list in this fashion, a long catalog of people who are not allowed to refer other people to NYT stories.

Commercially, this is not good. As I wrote before, the mental state that the Times paywall strives to evoke in its reader is "Hey, I'm getting so much value from this site, I think I'll sign up as a paying customer," not "Oh, those bullies at the Times have clobbered another programmer and this is the fifteenth time this month that it mistook me for a freeloader. Screw them!"

The Times's staff have tweeted that they are glad to have traffic from users who leap the paywall -- a visitor is a visitor -- and implied that I've mis-stated the nature of their strategy. However, this trademark theory, hostile to free speech and an open society, belies their bravado. The problem with the Times's paywall isn't (just) that it won't work -- it's that it will lead an institution whose mission is free speech, transparency and due process into a war with its readers that demands that it oppose these values to hold its ground against them.


  1. Everyone wants the NYT to survive, and everyone wants it for free. So… where should the money come from?

    1. The future will be individual authors that are maybe a part of some cooperative tech entity working on their own for donations and ad revenue.

      I could be vastly simplifying the concept, but the era of “Ivory Tower” gatekeepers is dying… I mean look at the New York Times. Their physical headquarters is this humongous tower they built themselves. And for what? A digital future? Or just delusions of their omnipotence.

      Paying for content will grow the way Etsy, eBay and PayPal has helped spurred a revival in crafting. But the formula isn’t exactly right just yet.

      Also, the paywall concept is flawed because what can stop anyone from buying a print copy or printing a copy of the New York Times and posting it on a wall like in old newspaper days.

      Heck, why can’t someone buy a few LCD screens and stream content to those screens as an electronic bulletin board people could read for free? Maybe have a concessions stand nearby to sell food and drinks?

      Sounds crazy, but for a local newspaper, why not do that?

  2. I just don’t understand what the Times thinks they’re gaining with this. Come the 28th, I’m going to drop the RSS feed from the Times of Paul Krugman’s blog (which is controlled by the Times and in which they could insert ads alongside the content I’m looking for) and subscribe to the RSS feed of @nytimeskrugman, which they don’t control, and which will show me Twitter’s ads if any. Either way, I’m still getting the content for free. A little less promptly with the Twitter feed, but Krugman’s not exactly a breaking news source.

  3. Cory, Last sentence: Whoa. Mind blown. Excellent post. Thank you.

    Mr. Skeleton, um, asking for donations?

    I am certain that many, many corporations would imagine seeing excellent returns on their tax-avoidance-charitable-giving programs via large gifts to the NYT.

    And perhaps they will, seeing as the Times is throwing their principles to the wind.

    “Survival” vs. “Acting without Principles” is always a false dichotomy.

    And the Times should have known that.

  4. The New York Times should make readers pay for articles by the word. Longer articles would of course generate much revenue. And long Sunday celebrity puff pieces could practically pay for the printing of the paper for an entire month. Editorials would be free to read, because editorials are generally not worth the html they’re printed on, and the comics section would be free to children but would cost a nominal fee for adults.

  5. How the hell did television survive for so long on no more than millions and millions of dollars of ad revenue?

  6. “The Times’s position effectively was that Times readers would mistake @FreeNYTimes for a big-hearted gesture from the Times itself…”

    This seems reasonable. I can see how people in general would conclude this.

    “…operated by the Times in order to defeat the Times’s paywall.”

    I don’t see how people in general would conclude this. Maybe well informed people with attention to and concerns about issues of ‘net freedom, copyright, etc. would. But, I don’t think most people who navigate to Times articles (through whatever means) fit that description.

    I personally don’t like the idea of a NYT paywall, but it’s their prerogative to try it if they want. I won’t use it, and if lots of others feel the same way, hopefully it won’t stand.

  7. I have always thought the pay model for Pandora was an excellent one that could be adopted many places. 99 cents for a month of streaming music with ad support after a set amount of free use is great. Then offering an ad-free, unlimited use option allows people who want extra convenience to pay for it.

    Give out the content for free. Make people want to come back because your content is good and your service is better than many. Then annoy me with some ad support and give me the option to pay $10 a month to skip all the ads and give me a clean, news driven page. That I would pay for.

  8. Clearly disturbing. For a number of reasons.

    The press has their “freedom of the press” allowing them to go wherever they choose and write about whatever they want (and print retractions later lol)… anyways…

    Then proceed to deny others the information unless they pay for it. Okay, so they need to make some money…

    They have advertisers for that. If they aren’t making enough money from their advertisers, then consider other strategies. And

    I fully agree with what alt42 said two comments above me. Have the free version bombarded with ads, and have more of an incentive to pay for the paper by making it ad free to subscribers.

    I once thought that brilliant minds were behind the strategies…

    1. Freedom of the press is not contingent upon giving your content away for free. These are two completely separate concepts. I think the paywall is misguided, but the Times has every right to try it.

      People who get all self-righteous about defeating the paywall piss me off. Don’t want to pay? All right, do what you gotta do. But don’t pat yourself on the back for being a freeloader.

      The product the Times produces is very expensive. There’s a reason they’re the newspaper of record. They have global reach and very high quality control for the little things that make newspaper stories useful as historical documents, as evidence in court, as fodder for congressional investigations, as guides for investors, as raw material to be followed up on by alternative media and human rights groups. I’m talking about properly spelled names, accurate dates, narrowly accurate facts. The Times is way too deferential to authority, but that’s a separate issue.

      This is an expensive business. They’ve got to pay all those reporters and editors and designers and web producers and lawyers to make sure they don’t get sued out of business every time they criticize some powerful figure.

      If you don’t want to buy what the Times is selling, fine. I respect your choice. Besides, there’s more content online offered for free in earnest than you could ever read, anyway. Take your clicks to some nice free site that wants to make an advertising-based model work. Time will tell if anyone will be able to build a journalistic institution on the scale of the New York Times from online advertising alone.

  9. The point of a trademark is to prevent confusion regarding the origins of the data. If I saw a Twitter handle with the title “free New York Times” I would certainly, and rightfully, assume that it was associated with the New York Times. The Times is absolutely right in its claim that this affiliation would be assumed by folks who saw this handle. It’s disingenious to claim that this is about restricting the use of the newspaper’s name.

    Seriously if you saw “free Wall Street Journal News” would you not assume an association of the news source with the Wall Street Journal?

  10. Hang on, so if I was unfortunate enough to be named ‘Palin’, I wouldn’t be able to call my daughter Sarah? Or would said putative Sarah simply not be allowed to be famous? Not that either of us ARE called those things, just sayin’.

    1. It would only be problematic (besides the obvious problem of having the name Palin) if said fictional daughter took claim to be THE Sarah Palin, I think. If @FreeNYTimes was sending out pictures of cleverly designed cupcakes and bento boxes I don’t think this would be happening. Although human rights and branding rights are significantly different. For example, Twitter handles can’t vote, yet.

    2. Sigh … people shouldn’t get caught up in trademark discussions if they don’t understand the concept of a trademark.

      It’s about context; and Sarah Palin’s name is covered under the context of professional speaking and presentation I believe?

      Admittedly the article makes the same mistake by indicating that referencing her name in the paper could cause a problem, which is completely false no matter what angle you look at it.

      The twitter feed is an issue because it’s using the trademark, in context, and in a way that could cause confusion to a user as to the association of the twitter account and the trademark holder.

      Remember; BP hold a trademark on the colour green in the context of fueling stations (in the UK at least); and T-Mobile own pink in regards to mobile operators. This doesn’t mean that you can’t use the colours green or pink for anything, anymore than it means you can’t name your child Sarah Palin.

  11. Thalia is 100% correct. This isn’t a ridiculous trademark claim at all, it was a very misleading Twitter page, and I think all this particular criticism is unwarranted until the NYT takes action in a different manner.

  12. So, odds on a rotating cast of advertisers underwriting X00,000 free reader accounts at a time?

  13. I should mention that the use of the NYTimes logo is required by the NYTimes API Terms of Use, as is linking to, which ironically contains this gem:

    “Why just read the news when you can hack it?”

  14. Cory’s anger at the NYTimes is palpable and confusing. Most of this blog post is just speculation.

    “The next step from the Times may well be…”

    “On the other hand, the Times might just…”

    Or, they might just not want someone tweeting under a name that very, very closely resembles their company name.

    Remember Cory’s last post about the NYTimes paywall? Where he made it sound like this would destroy the ability for blogs to link to articles? Then it turned out that, with only a little research, we could see that this was specifically addressed by their policy which allows an unlimited number of views from blogs that link. Hmm. Nice journalism.

    I, for one, applaud the Times. If you read the Times, and I mean really read it, then you deserve to pay for it. If you causally follow links from others who post links, then fine, you don’t need to pay for it. This seems to me to be exactly what their policy strives for.

    1. Apparently the WSJ paywall has worked very successfully for that company. Is there some fundamental difference between WSJ readers and NYT readers, such that the former believe in paying for things they consume, and the latter think others should subsidize their consumption?

  15. What can you expect from the richest man in the world…living in not exactly the richest of countries?

    Carlos Slim, owner of a big chunk of the Times, has been doing this kinda of unfair ridiculous commercial mogulism since the beginning of his fortune, which was by the way, handed to him by a former president of Mexico. Slim was given, not unlike Kane was given rosebud, the monopoly of all, and I mean all phone calls from a landline during the 90s. No company has been able to penetrate the market since. Slim also owns all the cables needed to make a phone call and rents them to the competition at ridiculous rates.

    He charges whatever he wants, for mostly shitty services. Like his internet service, which he provides to most of mexico, I think our record speed is 9Mb download and 3mb upload on a clear sunny day, and this is only at a price rich people can afford, or his shitty cellphone and land line constantly dropping calls…his business style is like his offices, trapped in tacky green wallpapaer and carpets, greek knockoff marble busts, amiga computers, and just and overall whiff of 90s decor, plastered with machismo, low wages, and constant hand rubbing by doing things the way he wants just because no one will stop him.

    I really hope america doesnt have to face the shitty style of bussinnes ethics as it cheapens its own cost of living to become competitive again in the world.

  16. The secret intent behind every battle in the piracy war is that some day, some how, someone dreams of making more money doing the same thing.

    For instance, I don’t really like U2, but I do like music. Learning about music means being able to hear it, and studying music means being able to pull a few songs up and compare them. I also may not like the NYT, but I feel it’s important to familiarize myself with what my fellow Earthlings are up to.

    The basic human right to participate in our own culture by observing it is fundamentally denied us all by a conceptualization of intellectual property that really works best if you’re Beyonce, Bill Gates, or the Church of Scientology.

    The NYT will never be “reduced” to putting out a digital tip jar because they dream that some day, control will be back in their favor, and a rising cost to try before you buy will go straight into their pockets, under the pretense that there are so many of us stealing what we can afford to pay for, that we can afford to deny it to those who can’t.

    If the NYT *did* put up a tip jar, I might just use it. But I indiscriminately hit my browser’s “back” button when I see a “login or else” screen.

    1. > familiarize myself with what my fellow Earthlings are up to.

      I meant, what they’re reading/viewing/hearing. Primarily I’m concerned with how art and our national discourse are being constrained. Americans depend on the media to intermediate our national discussion, and we’re really supposed to believe that we don’t have a right to that information? I don’t know how to reconcile this with the economic reality of running a newspaper, but when a news organization actually shows their costs and revenues to me, I listen, and I pick up a copy of my local paper M-F.

  17. Myself, I’ll go for denying them access to our culture, just like I’ve suggested for the music and movie industry.

    Denying them access to our culture means not even mentioning the content in question. So, basically, treat them like Engadget treats Monster Cable. Don’t even acknowledge its existence.

  18. The Times used to have a digital tip jar. It was called “Times Select,” and I was one of the few that used it, because at $50 a year, I could (sorta) afford it. Can’t afford the full sub under the new plan, so thanks Lincoln Motors for springing for full access for the rest of the year. And thanks “FreeUnamedNews,” too.

    Look, it costs a lot of money to maintain reporters around the world, and editors to make it all available. The Times adds a lot of value, and they deserve to be compensated for that. I think that the paywall they came up with is both confusing and stupid, rather like Microsoft(tm) Windows(r) pricing. Just give us one fair price for full access, and there’s likely to be a lot more takers, and a lot less confusion.

    1. Listen, the NY Times ISN’T impartial; therefore they could just as easily be funded by advertising … like they already are. Or do their newspapers contain no ads?

      The price you pay for the physical version probably only covers the printing and distribution anyway; so they aren’t making any less money providing the material for free online subbed by ads – like every other news content resource on the internet that makes plenty of money.

  19. Could someone answer me how reading the NYTimes through RSS feed (where I get a title and short sentence about the story) would affect my “free 20 a month”? I couldn’t figure that out from their FAQ, and I wrote them to inquire, and have heard nothing. Joe Helfrich above indicates that the RSS feed would be NYTimes controlled and thus limited, but from what I’ve read, it’s not 100% clear (to me) that’s the case.

    Oh yes, and Lincoln emailed me a “free until the end of the year” offer. I wonder what the catch is.

    1. “Oh yes, and Lincoln emailed me a ‘free until the end of the year’ offer. I wonder what the catch is.”

      Something their Lincoln Lawyer thought up to screw you.

  20. The New York Times is working against a business model that is all but dead. I doubt any sort of pay wall system will help. Still, I think that there is a good chance a reasonable person might think that the twitter feed – @freeNYTimes has been set up by the paper. Companies deliver free and paid versions of the same thing all the time.

  21. For a more thoughtful and eloquent writer & analyst than myself, it seems that there has got to be a pretty interesting story to be written that compares and contrasts what the WSJ & NYT are doing with paywalls and the issues of public funding for things like NPR…

    Anti-public funding of NPR folks say that if the content is good, it should be able to stand on its own or rely on money from corporations and foundations (i.e. advertising with a different name) or individual contributions (which to me seems like a voluntary subscription model).

    Then folks like NYT and WSJ seem to be saying that they can’t make it on advertising, so they put up a paywall and people say that’s never going to work…

    We hear from some (I think less creative thinking folks) that it means that writers/editors are going to have to work for free if no one’s gonna pay…

    But it seems to me that large media company’s (if they really want to remain in business as information providers) should just try harder to come up with creative business models. I think the rub is that the people at the top with enough juice to make those decisions are willing not doing what needs to be done because they don’t like the way that the inevitable future will look.

    Why do they need a big building in New York? If online & mobile is where the future is at, then fuck it, just do it.

    I’m willing to bet that fixed and variable costs related to owning and maintaining their mega-structures in NYC and all the legacy print-oriented infrastructure would be more than enough to fund a complete overhaul of their structure as well as set up some pretty amazing technical infrastructure that would allow all editorial and sales staff to live and work anywhere they want to .

    Shut down the presses, sell the trucks, go to a lower fixed-cost model to pay for the things that you need to collect, produce, and serve the information.

    If you are not involved in writing/producing content, value-added editorial, or 100% commission-based ad sales, you’re fired. really, Mr. Sr. Exec. Editor… Get your own fucking coffee and pick up your own dry cleaning. Don’t like it, there’s always craigslist…

    Of course that would mean a big shake up and a lot of upper and middle management would be made redundant I bet. The same folks that are trying to shoe-horn a dying business structure into a revenue model that will save their asses but that customers and the market don’t want.

    Why don’t all best the writers for the NYT, WSJ, etc. read the writing on the wall and just bail?

    Why can’t they all go off, start up a website WallYorkPost or something and keep 100% of the money they get from ads? If you have one site where all the best writers are, everyone’s going to go there to read their shit, right?

    If the content is good enough to attract and retain eyeballs, so good that readers don’t want to go elsewhere, then what’s the fucking problem? If what you do is not held in high-enough regard to attract an audience that is large enough, or demographically attractive enough to advertisers to get the rates you need to live on, then what you do really isn’t that good… Go get another job.

    I must be missing something, because this really seems WAYYYY less complicated than people are making it out to be.

    1. You make some great points. In Chicago I have watched the Tribune crumble from being run as a frat house to poor business choices, coupled with the ever rearing ugly head of the economy. There is a lot that the groups could do that they haven’t yet.

      I remember a story that for the cost of 1 year of printing the NYT for New York alone, the NYT could buy everyone a Kindle and send the paper via that. And then years following would have a huge chunk of their costs gone.

      The model for news doesn’t want to change, though it is changing anyway. Shortly after the printing press was invented, Europe entered the Dark Ages. The hierarchy that is newspapers is being overthrown by the people because they are fighting the people rather than kneeling down and humbling themselves.

  22. The problem is that this will really kick what’s left of journalism in the US out on its ass. Most of it already chase demographics like US Tv and churns out superficial pap, suitable for the immature minds the advertisers are after.

    Oh and @freeUnnamedNews, no its not good when you still write in your profile you are ripping them off.
    Of course the Streisand effect will be in full force on your twitter feeds, perhaps you should insert some ads ;-)

  23. propaganda rag that does it’s part in pied-pipering us off to whatever war is popular atm

    do. not. want.

  24. I love the paper NYT! I think they have a good compromise with letting people link in. I have no problem paying for their great writing — I hope others feel the same so it doesn’t die.

  25. If someone already pointed this out I apologize, but:

    “an institution whose mission is free speech, transparency and due process”

    I understand why one might say such a thing in this context–pick your battles and all–but it did take me by surprise. I honestly don’t think the NYT, as an institution, is especially concerned with these things.

    I would be happy to pay for content if I believed the NYT was indeed committed to these values.

    Instead I am fairly indifferent to the coming paywall as I have realized that, although I find plenty worth reading in the NYT, it is now geared toward a rather specific demographic of which I am not really, or perhaps only marginally, a part.

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