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This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we look at a new system designed to help media companies get paid for unauthorised use of their work and we ask: does it take enough account of copyright exemptions?
But first, here are some of the top stories from OUT-LAW, where you can read breaking technology law news throughout the week.
Man arrested over alleged piracy site
and
Police told not to look at journalists' photos.
A Somerset man has been arrested on suspicion of a criminal breach of the Copyright, Designs and Patents Act. The man is said to be involved with Filesoup, an alleged file-sharing website.
The investigation was conducted by Avon and Somerset Police in conjunction with film industry trade body Federation Against Copyright Theft or FACT.
An account of the arrest posted at Filesoup which purports to be from the man, who is known only as Geeker, said that he was held in a Police station for seven hours and that 33 items were taken from his house.
The account claims that the search warrant under which Geeker was arrested relates to offences including distributing and infringing work and "communicating the work to the public," either in the course of a business or "otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright".
Geeker's account says that documentation given to him about the seized items said that he should apply for their examination or return to Neil Gardner, a Senior Investigator with FACT at a FACT address.
A FACT spokesman declined to confirm or deny whether it had the material in its possession but said that it was not uncommon for Police to use outside organisations to assess or analyse evidence.
A spokeswoman for the Police would not say whether it or FACT had physical custody of the material but said that as long as the Police have lawful possession of the material it can be given to external bodies for examination.
The High Court recently said that the refusal of FACT to return material gathered by Police as evidence in a separate file sharing case and handed over by Police to it, was against the law. The Police and FACT have appealed that ruling and a Court of Appeal hearing is expected in September.
Police officers should 'exercise caution' when asking to view images captured by members of the media according to amended advice to officers published by London's Police force, the Metropolitan Police Service.
The Met faced criticism from the National Union of Journalists (NUJ) last month when it published guidance that did not recognise the special rights of the media.
The guidance now makes it clear that a court order could be needed to view images captured by members of the media and warns officers to be careful. It says: "where it is clear that the person being searched is a journalist, officers should exercise caution before viewing images as images acquired for, or created for the purposes of journalism may constitute journalistic material and should not be viewed without a court order".
The New Guidance also makes it clearer that searches of photos or video are only allowed when an officer suspects the person being searched of being a terrorist.
Those were some of the top stories from this week's OUT-LAW News.
These are turbulent times for newspapers. A global recession has hit sales and advertising income at a time when papers were already under severe pressure. The internet and free commuter papers are sapping readers and income at an alarming rate, and have been for years.
Papers have always meekly gone along with the view that they have to put their material online for free to be in with a shout of retaining readers, but recent months have shown a change in attitude.
The world's most successful newspaper baron, Rupert Murdoch, announced this week that he would be charging for access to all his newspaper websites by next summer this includes the Times, the Sunday Times, the Sun and the News of the World in the UK.
Meanwhile the Associated Press News Agency is getting ever more bullish about tracking and acting on rogue uses of its work and is even invoking decades-old legal doctrines to protect its content.
Into that more protective atmosphere has stepped Attributor. The US-based start up says that it can help content producers to track usage of their content and even get paid for it.
Attributor Vice President of Business Development Matt Robinson told me how the system works.
Matt Robinson: In essence what Attributor is made up of on the back end from a technology perspective is a massive crawling operation we crawl somewhere in the neighbourhood of 200 million pages per day and as we are crawling all of those pages we are creating fingerprints from the content that sit on those pages so that we can compare those fingerprints to the millions and millions of fingerprints that we have flowing into our system from rights holders who have “claimed” their content. What we end up with is a near real-time, footprint of how content, how articles are copied across the web.
Attributor claims all sorts of benefits for just knowing who is using your content, but the publishing industry is only really going to be interested in one thing right now: getting paid. So how does Attributor hope to make that happen?
It says that it wants to divert some of the income from advertising that appears on pages using unlicensed content to the companies whose workers made that content in the first place.
So if you have a site and you unlawfully use, say, a Reuters article, you would find that money from ads on your page was being diverted to Reuters.
Robinson admits that in this plan his company is entirely at the mercy of the firms who run online ad networks. What's more, the company is unlikely to have large scale success if it doesn't convince the big boy of online advertising, Google, to play along.
Matt Robinson: The ideal situation would be that all of the top ad networks participate out of the gate. That is not a realistic expectation, I mean depending on what, you know, what reports you read it is uniformly understood that Google comprises a lion's share of the market in terms of third party ad network. At the end of the day is Google important, of course. The market share dictates so and we have had, you know, ongoing conversations and look to deepen those conversations with them in the coming months, are they important, absolutely, it is critical for the success of the model, time will tell.
Even if it can't be a revenue-generating service, though, Attributor says that it can help companies to prevent unauthorised use of their content by cutting off income to copyright infringers.
Matt Robinson: We will send take down notices to the ad network to remove those ads. Ad networks will remove ads based on DMCA copyright notices in that most of them, if not all of them, actually pose public FAQs on their websites that they will respond to DMCA take down notices for advertisement.
So they will take their ads off a page if the page violates copyright.
Matt Robinson: Correct.
Attributor wants to help content creators to receive fair value for their work, which is admirable. But there is another side to the equation. If its technology hands ad money to content creators it also takes it off other people.
It has a duty, then, to make sure that if its systems are identifying material as breaking copyright law it gets it right every time.
Robinson explained the threshold for Attributor identifying use as illegal.
Matt Robinson: What we have essentially defined as a copy is 90% of the original article and at least 125 words.
Copyright law only restricts some uses of material, though. If you are using it for the purposes of news or review or for some educational use or if you have certain disabilities, copying is perfectly legal under fair use or fair dealing exemptions.
Attributor's system, though, takes no account of these.
Matt Robinson: Where we have started in essentially full content copy, copy of the original article more than 90%, we believe has a eliminated that question, not to say that it will not come up in some circumstance. We are looking at other ways that we can basically drive that to zero. But out of the gate we think that that this is probably as much as we can do to objectively, you know, remove the subjectivity of the fair use task in a sense that if we, if it is commercially used essentially with advertising and it is a full content copy that is at least 125 words, that the fair use issue is from the most part gone. But at the end of the day we are literally talking practically about something that we almost never see in the, you know, hundreds of millions of matches that we have seen this has come up once or twice so far so, just practically speaking I want to put this in some context and certainly not have a debate over fair use.
So what do you do if your page is tagged as infringing, if your income is being siphoned off and you think your use is fair? Well, Robinson said that there will be a procedure for dealing with that situation.
But the system is live now, being tested on public sites.
Matt Robinson: There will be process by which you can, you can contend or object essentially to this system and that is what we are working on right now with the ad networks to make sure that that is simple. For some of our customers, sure there is action being taken in the context of takedowns and we are testing this monetization system we are talking about right now.
So there is an action being taken just now, although there is not yet a process by which people can query the judgment that has been made of their content.
Matt Robinson: Correct, correct any takedown notice is subject to the DMCA which is, as you know, a well prescribed process. Obviously the DMCA provides for a counter notice provision that, you know, is fairly well defined and fairly well established and all of that will essentially be replicated in the system.
But Attributor says it is not just about chasing infringers. It hopes to help content producers establish a whole new business model: hyper-syndication where its technology takes the place of manned syndication departments placing articles and chasing up payment.
Matt Robinson: Think of this not just a means of collection, where we are trying to shift the paradigm is thinking of this issue as a shift in business models or at least an opportunity to shift in business models where you are not just looking backwards to collect for “infringements” but really looking forward in saying to the rights holder you can make available your content, you can feel comfortable making available your content under, you know, a variation of essentially a creative comments type license that contains a rev share clause, that basically says you can use my content in full so long as the advertising on that page is part of the Attributor program.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next time but for now, goodbye.