“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 ($3.99) that gives users access to our RSS feeds, they are violating that provision of the Terms of Use. Furthermore, when a user clicks on a story in the News Pulse Reader, it takes them to the nytimes.com site, which is framed within the News Pulse Reader app browser, as opposed to taking them directly to our site. (Since our RSS is not full text, once a user of any of our RSS feeds views the RSS headline/summary of any of our articles, a user can click a button in the app labeled ‘Web’ & this opens our web site up but keeps the user within the App.) This is a violation of the nytimes.com Terms of Use. Finally, they are 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: http://www.alphonsolabs.com/video.”

“We want to be clear that we are willing to work with Pulse, but only under our Terms of Use.”

I asked again if this has implications beyond Pulse—it’s hard to see how it couldn’t—and will update with any response. [Update: The answer is: “We would look at each instance on a case by case basis.”

Akshay Kothari, one of the two Stanford students who developed Pulse, told Kara they would be removing the NYT from Pulse, which got a rave review from the NYT’s own Brad Stone last week.

Update: Pulse is back in iTunes sans mentions of NYT. When I checked at first, the NYT had been excised from the app screengrabs. But when I downloaded the app just now (6:45 ET), the NYT feed shows up and stories still were being framed—with what looks like a new “open in Safari” option that so far I see only on NYT pages. The iTunes page carries a note at the top: “Featured in Steve Jobs’ keynote at WWDC 2010!”

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Letter to the Apple AppStore from NYTCo Senior Counsel Richard Samson

Hello-

I am writing again, on behalf of The Boston Globe, Boston.com and The New York Times Company, about the infringing iPad app, “Pulse News Reader” produced by Alphonso Labs Inc. (please see pertinent details, link and screenshots below).

The infringing app is available on the iTunes store here: http://itunes.apple.com/us/app/pulse-news-reader/id371088673?mt=8

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.

I note that the app is delivered with the NYTimes.com RSS feed preloaded, which is prominently featured in the screen shots used to sell the app on iTunes.

I hereby declare, under penalty of perjury, that the information contained in this notification is accurate to the best of our knowledge and that I am authorized to act on behalf of the owner of the copyrights and trademarks of The Boston Globe, Boston.com and The New York Times Company. We hereby demand that you immediately and permanently remove this app from the iTunes site.

Please let me know if you need any further information or have any questions. I can be reached directly at this Email or at the phone number below.

Thank you.

Sincerely,

Richard Samson

Richard Samson
Senior Counsel
The New York Times Company
620 Eighth Avenue
New York, New York 10018

* NYTimes.com Terms of Service, paragraph 2.2:  “The Service and its Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.3 of these Terms of Service), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.”

* Boston.com Terms of Service, paragraph 2.2: “The Service and its Contents are protected by copyright pursuant to U.S.and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.3 of this Agreement), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.”