<em>New York Times</em> 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.