Today, we are happy to announce the results of the FairNotice Trial for News, a five-month study run by Attributor in support of the Fair Syndication Consortium’s exploration of new models and rules for online content syndication. We are excited about the results, which show that 75 percent of sites that copy content without prior authorization are willing to alter behavior when approached in a reasonable manner.

We believe this high rate of cooperation paves the way for introducing new, low friction revenue generating syndication models that provide sites with a path to profits while fairly compensating original creators for their work.

The Fair Syndication Consortium (FSC) was formed in 2009 with the goal of innovating and disrupting online content syndication. The FSC initially focused on developing a new monetization model called FairShare, in which syndicators share advertising revenues generated with the content producers. What if there were ways in which anyone anywhere could use your work and you would still get paid for your creation?  FairShare is a new way to syndicate content and ensure that the money flows to the folks creating the audience and to those producing the original content.

Thousands of users quickly became members of the FSC in support of this new model for syndication, and it quickly became clear that in order for FairShare to succeed, there had to be a way to handle bad actors, i.e. those who are not willing to share the revenue.

What quickly followed was a development framework on top of the Digital Millennium Copyright Act (DMCA) called FairNotice, which fundamentally changed the approach taken in copyright enforcement. FairNotice starts with the radical, and often dismissed premise, that the citizens of the Internet are cooperative and will seek to do the right thing if granted the opportunity to do so; FairNotice treats these people as neighbors rather than enemies.

This new approach focuses on changing the economic benefits of using content, doing so in a manner that does everything possible to seek an acceptable outcome before removing the content or changing the online experience for consumers. In our view, this is a critical point; this is about supporting the Internet’s information sharing ethos in a way that respects the intellectual property rights and economic interests of creators.

Figure 1: The Fair Syndication Consortium’s progression of innovating and disrupting online content syndication

How FairNotice Approach Works

FairNotice is a three-step process of reaching out to sites that copy content without prior authorization in a way that gives them a chance to correct the issue (Steps 1 and 2). It’s based on the belief that most people are reasonable and, if simply asked, will comply with the request. The process also takes into consideration methods for handling non-cooperation (Step 3). Realistically, there will always be a certain number of “bad actors” who are determined to not cooperate, regardless of the approach taken. Any system that addresses the issue of copying needs to address this minority effectively, but not be built with the assumption that all syndicators are bad actors.

For the trial, only clear cases of copying entire articles were included. A full copy was defined as any Web page that contained more than 80 percent of the original article and contained at least 125 words. This definition was collectively determined by members of the Fair Syndication Consortium and was intentionally designed to avoid legitimate fair use claims. In order to ensure accuracy, each original article was individually reviewed to identify any instance of fair use.

The trial only included sites that copied original work from a single rights holder 10 or more times in a month.  Additionally, the trial only targeted sites that had advertising on the pages with copied content. The vast majority of sites with this extent of copying were systematic infringers, not casual copiers or bloggers who may be unaware of copyright law. It is difficult to justify the use of more than 10 full news articles per month on a site that is generating advertising revenue without sharing some of the revenue with the original producer of the content.

Below, we explain the three FairNotice steps implemented during the trial:

FairNotice Step 1

Once a site is qualified for FairNotice, a friendly email is sent to the site’s owner noting that multiple full copies of someone else’s content have been found on their site. The site owner is reminded that the content is subject to licensing and is provided information about obtaining a license should they seek one.  The email also handles cases where the site owner may already have a license, and requests, if they do not wish to license the content, to kindly remove the copies.

The goal here is to engage the site owner in rational conversation about the articles being copied, while providing alternatives.

FairNotice Step 2

If no response is received within 14 days and the site has not removed the copies, a second email is sent. This email informs the site owner that:

1. Search engines will be contacted to have the web pages containing the copies removed from their indexes; and
2. Advertising networks providing ads to the web pages containing copies will be contacted to have the ads removed from those pages. Note that this method of involving the search engines and advertising networks is new and had not previously been tested at scale prior to this trial.

Again, the goal is to encourage the party come forward and to find a mutually agreeable solution to the copying in full before escalating further.

FairNotice Step 3

If the site is still unresponsive and doesn’t remove the content within an additional 14 days, the site is escalated to the next level. At this point, the site has made it clear that it is not interested in “doing unto others” and respecting the content producers’ rights. As such, the next step is to contact the host site and request removal of full copies under the DMCA. This step was not included in the trial, but remains part of the process to handle uncooperative sites.

Between escalation steps, the site is monitored both to see if the copies have been removed and to identify potential new instances of copying.

The burning questions going into the trial were:

• Will this new approach of layering a new framework on top of the DMCA be effective?
• Will site owners, search engines and ad networks cooperate?
• Can site owner behavior be adjusted through thoughtful and strategic escalation, rather than starting with content removal notices?

Trial Methodology

The FairNotice Trial was conducted during a five-month period from March through July 2010. The trial used Attributor’s Guardian for News service as the underlying technology platform to identify copies across the entire Internet.

More than 70,000 original news articles were processed from a collection of regional, national and international newspapers comprising ad-supported, pay wall and syndication revenue models. The diversity of news organizations participating was important to ensure the findings were representative and applicable to the entire news industry.

After excluding authorized licensees, more than 400,000 full copies were identified across nearly 45,000 websites. Each of these full copies contained one or more advertisements. This is an important point as only sites that were generating revenue via advertising were identified. As such, no non-profit, educational or government sites whose copying might constitute fair use were considered.

The trial randomly selected 107 sites out of the 45,000 sites (three times the statistically significant amount) that posted at least 10 full copies in a 30-day period. Site owner contact information was researched by hand and every notice was reviewed by a trained human prior to sending a notice to the site owner, search engine and ad network.

Trial Results

By the end of Step 2, 75 percent of the sites had either removed the copies or started a conversation with the content owner about becoming a licensee. Further, none of the sites that received a notice filed a counterclaim. Additionally, the search engines and advertising networks complied with each of the more than 15,000 removal requests they received, typically within a 24-hour period.

Conclusion

We recognize that there will be Internet denizens who are not in favor of any system that utilizes the DMCA in any form whatsoever. We equally recognize that there are content producers who prefer to start with bolder actions as their first form of engagement with syndicators. At the very least, we hope that we have provided a new framework that moves the Internet toward better outcomes for all parties involved.

We acknowledge that copyright is a difficult issue and one that has many viewpoints, methods and outcomes. The framework and results we have detailed are a work in progress, which we hope will ignite a substantive and data-driven debate about how best to evolve the Internet and the content economy. We welcome criticism and spirited conversation about FairNotice and the results.

This opens the door for a conversation about new, mutually beneficial and mutually agreed upon syndication solutions for content originators and syndicators of any size or type.