By Dan Kennedy • The press, politics, technology, culture and other passions

Copyright hypocrisy at the New York Times

Last Saturday the New York Times posted a PDF of a 1976 article by the legendary Boston sports journalist Clark Booth that appeared in the Real Paper, an alternative weekly that was published for several years in the 1970s. The article accompanied a column by Joe Nocera on football injuries, about which Booth wrote perceptively some 36 years ago.

I have to confess I didn’t think twice about copyright, figuring Booth, whom Nocera interviewed, had given him permission to reproduce his words. But now Boston Phoenix editor Carly Carioli has pointed out — rightly, in my view — that, in fact, the Times has violated the Real Paper’s copyright and that of the photographer(s) whose work was reproduced. And since the Phoenix acquired the Real Paper’s assets when the paper went out of business, the Times must answer to the Phoenix.

The Times’ reproduction clearly fails the fair-use test, most obviously on the grounds that it reposted the Real Paper article not for the purpose of commentary and criticism, but so that its readers could enjoy reading it. I imagine the Times could also get whacked for taking too much of the article (i.e., the whole thing). Even though it would be tough to argue that anyone lost any money as a result of the Times’ actions, another important fair-use test, I’d guess a judge would favor the Phoenix if it ever came to that.

But Carioli is not concerned with the negligible harm the Times has done to the Phoenix so much as he is with the behemoth’s rank hypocrisy. Former executive editor Bill Keller, now a Times columnist, has been obsessed with the nefarious forces whom he believes have been improperly profiting from Times content. And, Carioli notes, the Times reached out and killed a pretty cool iPad app called Pulse merely because it reproduced headlines without permission.

Writing that “copyright in this country is a goddamn mess,” Carioli continues: “We want an internet and an intellectual-property regime that rewards discovery and innovation. We won’t get it with copyright construed the way it is now.”

And we won’t get it with the Times saying one thing and doing another.

Addenda: (1) I had the privilege of copy-editing Clark Booth’s weekly sports column for a short time in 1990, when I was working at the Pilot, for whom he still writes; (2) you can also read Booth in the Dorchester Reporter.

Disclosure: I’m a contributor to the Phoenix, and was a staff member from 1991 to 2005. I have a standing disclosure here, but sometimes it doesn’t hurt to remind people.

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New Haven Independent suspends comments


Follow-up: Copyright and the New York Times


  1. Andy Koppel


    You appear to have a love/hate relationship with The Times. To select one minor transgression and elevate it to the point of “rank hypocrisy” seems quite overstated.

    I suppose if they posted a defense of their behavior that contradicted their policy, they could be accused of hypocrisy. However, we are talking about one minor example by a publication that produces an enormous amount of content every day.

    I also think that you belittle the importance of Keller’s remarks by essentially distorting this single event into an example of enterprise hypocrisy. You seem to be using a minor pretext to unload a major amount of venom.

    Personally I think Keller’s concerns are quite legitimate, and so should anyone whose work is co-opted systematically for the private gain of others.

    Andy Koppel

    • Dan Kennedy

      @Andy: Frankly, what really made my eyes bleed was Keller’s assertion that he regards “phrases like ‘Net neutrality’ as Novocain for the brain.” Good grief. But yes, as someone who comments on the news media, I would hope I have a love/hate relationship with the Times. It provides plenty of material to love and hate.

  2. Andy Koppel

    I guess I think that there is so much more to love than to hate that it’s a false equivalence (to co-opt a phrase)!

    Funny, when I read that comment in his column, I thought of you and knew how you would react.

    • Dan Kennedy

      @Andy: A few salient facts: I was channeling Carly Carioli at least as much as I was expressing my own opinion, and I’m still a Phoenix contributor, which is disclosed here, but which I suppose I could have reminded people of.

  3. Larz Neilson

    Had it not been for the killing of Pulse, you could possibly let one case slide and forgive the Times for posting Booth’s article. But it the Times’ own policy and actions have made this a serious issue. And I’d love to see an internet and intellectual property regime as advocated by Carioli. Ever search your name and see who is using your work? Hint: you’ll might trace it to a large company that sort of rhymes with bugle.

  4. Bill Schweber

    I don’t know why you are surprised. The Times has always been a master of hypocrisy, while taking what they claim is the moral highground. Just think of that $20m goodbye kiss to the CEO recently, while soapboxing about the 1%/99%; or their continued use of unpaid interns while telling the world that such internships are so widespread and are just oh-so demeaning, unfair, and racially biased–and there are many other such examples. These are just two recent ones that come to mind.

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