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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 very latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we examine a long-forgotten law that could get the world's news industry in trouble, and we find out how much scammers really make in a day. The features are so packed there is no time for news today but remember to catch up on all the week’s breaking technology law news at OUT-LAW.com.
Every good lawyer knows that you can't copyright a fact. The way a fact is explained: Yes. The picture you draw to illustrate it: Yes. But the fact itself? It belongs to everyone. Usually.
An American court case may revive an age-old legal doctrine there that could offer some news publishers a way to protect their hard won information. For others it could prove a legal minefield.
News wire service, Associated Press, is using a law created in the courts in 1918 to try and assert ownership over the news it gathers. A New York court has given its case permission to go ahead.
The original law was created in a case that also involved AP. In 1918 it sued rival wire service, International News Service, because that company was using information AP gathered from the front lines of the First World War from all over the planet.
The US Supreme Court said that AP had expended such effort and expense in gathering the information that it deserved the right to earn money from it without others using it. The court said that while the information retained some of its value it should be protected by a quasi-property right. This became known as the 'hot news' doctrine.
Fast forward ninety years and AP is once again asserting its hot news rights.
It took action in New York against a Miami based news wire that it said was just reusing its material and selling it as its own. It said this breached the hot news doctrine.
The Miami company, All Headline News, said that the case should be dismissed, but the New York court said that hot news rights still exist and that the case should go to a full trial.
Kim Walker is an Intellectual Property law expert with Pinsent Masons, the law firm behind OUT-LAW. He explained why this is such an odd legal concept.
Kim Walker: The traditional ambit of copyright protection is text, so in other words if they write a story or they interview someone then what is recorded, what is written down is what is protected, not the facts behind what is recorded and what is written down. So this is unusual and in fact the doctrine is unrelated, it appears to be unrelated to copyright. It is quite a separate proprietary right.
Walker outlined what the principle is, and why it came into being at all.
Kim Walker: The hot news doctrine is that news organizations, news gathering organizations have some sort of proprietary interest in not just the text of what they write but also the facts. So if they go out and expend their resources uncovering some sort of scoop, uncovering some sort of news story they can protect that story and the value of that story against direct competitors. A lot of the value in what they gather and the stories that they have uncovered is in the time sensitive nature, in other words the fact that it is a scoop; if you can break the news first that is the sign of a successful news organization. So the spend a lot of money trying to be the first to get the news.
Now this all might seem of academic interest to us on this side of the pond, but there is a possible threat to British news gathering here, and it is all to do with jurisdiction.
The hot news doctrine used to be a federal law, covering all of the US but the later ruling changed all that. Some states have retained it in their state laws, and New York is one of those.
All headline news said that the New York court had no jurisdiction to hear the case because it was based in Florida, but the court said that because AP was based in New York that that was where the harm had been caused, and so the Court did have jurisdiction.
This opens up the possibility that UK news organizations might be on the hook for violations of the doctrine in relation to any news story emanating from a New York based media outlet.
News organizations chase each other's stories all day every day – it's what they do. As soon as someone publishes a scoop, other journalists are on to it. It is repeated on news websites, updated on rolling news stations and journalists dig deeper and reveal more and more about the story, all the time repeating the original report's assertions.
So will these journalists all be in trouble in New York? Walker says they might.
Kim Walker: That will depend on the extent to which the news organisation has suffered loss in New York because its time sensitive story has been copied. You know, that causes theoretical loss to Associated Press in New York. Its story is less of a scoop in New York than it would otherwise have been in a New York state and it would otherwise have been. If the doctrine applies only to news organisations, I mean there are a lot of news organisations but I would suggest they should be. They should be worried about this.
For all that this might seem an exciting way for journalists to protect their scoops, Walker said that it is not necessarily to be welcomed. Copyright law has all sorts of checks and balances to ensure that information can travel freely. The hot news doctrine is absolute and that, he says, could be dangerous.
Kim Walker: Copyright law intended to strike a balance between free speech - that there is no copyright in it, in facts or in ideas only in the way they are recorded and you can’t copy the way someone has written a story unless you use one of the fair use exemptions in the states, or fair dealing exemptions over here. It is a fair dealing, with a copyright work, for the purpose of reporting current events which is exactly for this purpose. It’s to ensure that someone doesn’t have an absolute monopoly on the news that it can be fairly discussed, fairly commented upon and that the current events exemption is undermined by this hot news doctrine.
There was a time when hacking had an air of nobility about it, a social and intellectual purpose. It was a game of wits, the corporate complex against the rogue individual who poked and prodded at systems to find and exploit flaws and took pride in beating the suits.
Nowadays, we're told, it's all about the money. Denial of service blackmail, credit card theft and scamming. But what we are rarely told is how much money is involved, until now. Security Company Finjan managed to peer into one scam and see it from the inside, and the data is in: a scam selling fake security software for $50 a pop can bring in $10,000 a day for cybercrooks.
The scam worked like this: One team of crooks broke into websites and infected them with code that redirected visitors to a website it controlled.
But how to get people to visit those sites? Well the crooks flooded the site's code with popular terms so that it came up at the top of search engine lists. It was turbo-charged search engine optimisation, using miss-spellings and typos and the latest popular words gleaned from Google trends.
Visitors to those sites were redirected to another site that told them their computer was infected and asked them to download free software to analyse the problem. The free software of course, always finds a problem, even on completely clean machines, and charges $50 to fix them. Needless to say there were no problems, there is no real anti-virus software and nobody ever saw their $50 again.
Yuval Ben-Itzhak is the Chief Technology Officer of Finjan. He describes what visitors following those bogus terms saw when they arrived at the site and were redirected to a page controlled by the scammers.
Yuval Ben Itzhak: When you land at that page after you have been redirected you will start to get an animated image that looks very much like your desktop and on that animated image you will start to see a progress bar that shows that someone is scanning your machine and found viruses and Trojan horses. Then they will pop up in tells you “hey, take a look, we’ve found viruses on your machine. Maybe you need to download our software and we will clean it for you so you’ll have a safe machine.” We found out that somewhere between 7% to 12% of the people that were redirected to that page actually downloaded the software. 1.79% will actually pay the $50.
So how was money made? And who got paid? Ben Itzhak breaks down the numbers for us.
Yuval Ben Itzhak: In overall over 16 days they managed to mislead 1.8 million users into this rogue anti virus pages. They are paying team A for any redirections, any user they managed to redirect its traffic to team B website, and we found out that they are paying 9.6 cents for every redirection. 1.8 million users in 16 days if you multiply it by 9.6 cents we end up that Team A, these are the cyber criminals that compromise website and add their pages, manage to make $172,800,000 in 16 days. So if you divide it by 16 you end up that they are making, for a single day, $10,800.
So how should people guard against it? Well, never believe pop up ads or sites that tell you that your computer is infected, he said.
Yuval Ben Izhak: If you go online with your browser and you are suddenly getting pop ups or messages that your machine was infected most likely this is false information. Maybe just go and visit one of the reliable and well know anti virus company’s website like Symantec, MacAfee and others, let them scan your machine as well and if they also find a virus maybe this is the time to take some action but if they didn’t probably someone is trying to mislead you downloading the software.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? We would love to hear if you know of a technology law story. Is there something you would like to hear us cover? Get in touch on radio@out-law.com. Make sure you tune in next week; but for now, goodbye.