Two Stanford graduate students created the Pulse News Reader, an app for Apple’s iPad, to fulfill a course requirement. It became something of an overnight sensation and was mentioned by both the New York Times and Steve Jobs within a week.
Pulse is little more than a fancy US$3.99 RSS reader limited to 20 news sources. According to Brad Stone, writing for the New York Times, “The students estimate that about 15,000 people have downloaded the app, which translates into more than US$40,000 in revenue, taking into account Apple’s 30 percent cut.”
One week later, New York Times lawyer Richard Samson sent a takedown notice to Apple, claiming infringement of rights. Apple promptly removed the Pulse app from its iTunes Store. Kara Swisher, writing for All Things Digital, broke the takedown story, wondered out loud about the beef after the students told her they intended to contact Apple and remove the Times content. “It is not immediately clear why they need to, since Pulse draws from publicly available Times RSS feeds, as do many other apps, and does no scraping,” wrote Swisher who also published the Times’ takedown notice and Apple’s email to the students.
First, the Times’ content in Pulse’s web view (using Swisher’s screen dumps as reference; I don’t have an iPad and haven’t used Pulse) appears to be at least partially framed. There’s precedent for this as a clear violation. In 1997, a group of news organizations including the New York Times, Washington Post, CNN, and Reuters brought legal action against TotalNews for embedding the former’s content within a frame on the latter’s website. The dispute never reached court; TotalNews agreed to stop framing content from other publishers, opting for straight hypertext links instead. The settlement also included disturbing language that allowed the plaintiffs to revoke permission to link at any time.
Second, the Times appears to object to a commercial use violation of its terms of use because Pulse is a paid app. “The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use,” writes Samson in his takedown notice.
It’s this second, commercial use violation, bit that is the most disturbing. Samson and the Times appear to be arguing that any software that makes use of RSS feeds must be noncommercial and free of charge. If that’s the case, what about commercial operating systems like Microsoft’s Windows and Apple’s OS X that include RSS readers? What about other commercial RSS readers?
ARTS & FARCES has had a web syndication policy since 1993 (it’s been updated from time to time as technologies like RSS became available). The policy has always been that you need a license to syndicate our content for anything other than personal, noncommercial use. Period. To see the New York Times stretch noncommercial use to include the software used to access the content is, well, embarrassing in its cluelessness. An RSS feed is nothing more than a really simple, usually openly discoverable XML file; that’s all. If someone comes up with an innovative way to make use of it, have at it. It’s sitting out there in the open just waiting/hoping to be innovated around. If you don’t want developers building on and around your RSS feed—as the Times clearly doesn’t—then either don’t publish it or restrict it to headlines and slugs (like the Times does), or make it not openly discoverable.
Perhaps it’s that the Times’ RSS feed is preloaded in Pulse that got the bug up the Gray Lady’s ass. If so, that’s even more disturbing but in a different way. Is the Times really so clueless as to not see the tremendous value in having its (truncated) RSS feed preloaded in a news aggregator?
As it turns out, it is indeed the case that Pulse is a commercial product that got the Times riled up. Staci Kramer, writing for PaidContent.org, asked Martin Nisenholtz, senior vice president, digital operations at the Times for clarification. Times spokesperson Robert Christie replied, “The Terms of Use on our RSS feeds makes it clear that the RSS feeds are available for non-commercial use only. By charging for an app (US$3.99) that gives users access to our RSS feeds, they are violating that provision of the Terms of Use. ...” Christie goes on to cite the framing issue and “using the Times name/content to promote their app, particularly because the Times RSS feed comes preloaded on the App and we are featured in their demonstration video.”
When Kramer pushed for clarification beyond Pulse, the response from the Times was chilling: “We would look at each instance on a case by case basis.”
Late in the day Brad Stone, writing for the Times, reveals what this is really all about. Times spokesperson Christie drops the bomb that “if other commercial RSS readers were making use of Times content, they were most likely doing so under an agreement with the Times Company.” Really? That’s cluelessly laughable.
What really got the Times’ goat gets buried at the bottom of Stone’s piece. The Times blew a gasket because someone—not the Times—had the temerity to write an app that competed with the Times’ own iPad app: “The conflict highlights the distinctions that some news organizations are trying to draw on mobile devices,” writes Stone. “Often they are publishing two versions of their content for reading on devices like the iPad: one on the open Web, and one available through an application. The Times‘s iPad application, which is free, offers a more limited selection of content than is available on its Web site.”
What’s going to happen when the Times finds out what its readers do with its print edition? I mean there’s still people out there folding it to read on the bus, clipping interesting articles, and—oh noes—lining bird cages and litter boxes with it.
RSS author Dave Winer sums it up best when he writes, “Look, if the Times is depending on stopping those two kids for its future, then the Times has no future.”
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