Ciao!

Sounds like the Times is trying to shore up, or should I say restore, it's image following the revelations about journalist/bullshit-artist Jayson Blair.

They sure are smug.

What do you call a thousand NY Times lawyers at the bottom of the sea ?

Their lawyers are probably on retention and need something to justify their fees...

Miguel,
I don't want to sound like a lawyer, but I do think the Gray Lady has a pretty good case here.

The cease and desist letter didn't mention the fact that Cox is putting corrections on what the Times reports on--the letter tells him to stop using NYTimes logo, links, advertisers, etc. When someone goes to his NYTimes correction page, it is virtually indistinquishable from the real NYTimes site.

I think Cox should definitely stop copying the NYTimes logos and images and keep up the good job catching all the mistakes made by the Times. He seems like a pretty creative guy who could come up with a good way to satirize the NYTimes site, without using their stuff.

Besides, good satire is always funnier than outright copying.

Cox's use of NY Times logoes and images innocent. To prevail on a claim for trademark infringement, a plaintiff must show

(1) a protectable mark; and (2) likelihood of confusion as to the origin, affiliation or sponsorship of the defendant's product.
See, e.g., Goto.com, Inc. v. The Walt Disney Co., 202 F.3d 1199 (9th Cir. 2000) (logo infringement on a website).

Likelihood of confusion is determined by a balancing test. The following factors are relevant: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant's intent in selecting the mark; and (8) likelihood of expansion of the product lines.
E.g., AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).

Rather than get into a protracted analysis, I think if you look carefully you'll find that the likelihood of confusion is tenuous at best.

Besides, I'm irritated by the over-litigiousness of the American business. Corporate attorneys would copyright the oxygen we breathe, if they could.

Tom said it well. Glenn Reynolds commented on this. The US Supreme Court has ruled on copyright-parody issues. Most notably in the famous Larry Flint case. The site's clearly a parody, and so falls under the case law set by the US Supreme Court.

Interestingly, the links generate traffic to the Times, not away from it. So it's actually a service to the paper. There's no apparent intended malice, and certainly he's not profiting from this.

There is a simple answer here, which does not require legal training. The website is misleading. To the casual reader, it looks in almost every way to be a New York Times website. Plus, its purpose is not satirical but informative. The corrections are just that, corrections. It's hard use parody as a defense when what you are doing does not burlesque the Times but precisely copies it, down to the last tittle.

A column-correction website is a useful service. Why muck it up with a misleading presentation?
Dan

I see your point. I just happen to be a bit more of the "hacker" mentality. Information wants to be free. But, legally, you have a good point. Then again, copyright law is only about a century old — designed to protect emerging media corporations in the early 1900s. Hence the phrase "Mickey Mouse" law — it's because Disney pushed to extend copyright benefits every time the previous timeline was about to make Mickey Mouse (and other franchise properties) part of the "public domain" — which I think they always were.

If we're moving away from predictions about the outcome of legal action taken, and into the moral realm, I bear even more support for Cox, for the following reasons:

- The casual reader would link to the site expecting to find column correction. She wouldn't link there in order to "read up" on news. Ergo, would not be mislead.
- The site is pretty clearly intended to be primarily parodistic, as well as informative. The manifested primary intent is to mock the Times' inaccuracies, not to supplement the Times' own corrections.
- The purpose of copyright and trademark protection is to avoid confusion in the marketplace, by allowing trademark owners to prevent others from duping consumers into buying products they mistakenly believe were sponsored by the trademark owners.
- Cox's has no pecuniary interest in the reproduction. He's not selling anything on it. He's not advertising on it. The only apparent purpose is to point out the mistakes, in a parodistic manner, that the paper itself fails to catch.

I think Cox should be able to reproduce an image of the Times, criticizing their errors, without fear of prosecution.

There's something American about the individual standing up to a large and powerful organization, and thumbing his nose. I applaud it. Criticizing the Times is an act of free speech; and I think replicating a Times' page and inserting legitimate corrections - that the Times itself fails to note - is likewise a parodic form of free speech expression.