False positives and copyright
Any binary decision requires us to consider both the probability of getting it right and the consequences of getting it wrong. Many legal systems have traditionally felt that wrongful convictions are worse than wrongful acquittals, and this forms part of the support for the presumption of innocence.
In other areas of the law, the incentives are different. In automated detection of unauthorized copying, and resulting ‘takedown’ notices under laws such as the US DMCA, there is effectively no risk to the copyright holder from false positives, so there is not much incentive to avoid them.
An interesting example (via the far-from-unbiased BoingBoing) is this takedown notice, one of the stream routinely posted by Google at ChillingEffects. The first few pages just show torrent sites that posted unauthorised copies of MS Office and deserve what’s coming to them, but if you scroll down to Copyright Claim #2, it starts to look different:
1. http://www.bbc.co.uk/cbeebies/grownups/guide 2. http://www.bbc.co.uk/cbbc/watch/whatson 3. http://www.opticsinfobase.org/oe/abstract.cfm?uri=oe-20-16-18336 4. http://www.bbc.co.uk/news/technology-18981491 5. http://www.570news.com/business/article/386434--goldcorp-posts-45-drop-in-second-quarter-earnings-gold-prices-under-pressure 6. http://minnesota.cbslocal.com/video/7546215-745-a-m-weather-update/ 7. http://www.washingtonpost.com/world/europe/spains-repsol-says-q2-profits-down-45-pc-as-lower-oil-prices-take-toll-on-value-of-inventory/2012/07/26/gJQAX3GjAX_story.html 8. http://www.pasadenasun.com/sports/pasadenasu-howie-farer-45year-panther-coach-steps-down-20120725,0,6636990.story 9. http://articles.cnn.com/2012-06-23/justice/justice_pennsylvania-sandusky-trial_1_jerry-sandusky-word-guilty-verdict?_s=PM:JUSTICE 10. http://www.epa.gov/iris/subst/0395.htm 11. http://www.upi.com/Top_News/US/2012/07/01/Waldo-Canyon-fire-45-percent-contained/UPI-54181341179119/ 12. http://en.wikipedia.org/wiki/Caesar's_Civil_War 13. http://en.wikipedia.org/wiki/Glock 14. http://en.wikipedia.org/wiki/Britain's_Got_Talent
Are Wikipedia, the BBC, and the US Environmental Protection Agency really posting pre-release copies of Windows 8? Could Microsoft have a ‘reasonable belief’ that they are? Will there be any penalty for not bothering to check?
If there’s a benefit to true positives and little or no loss for false positives, you should rationally decide not to think to hard before deciding something is an unauthorised copy. If you don’t like this situation, you should rationally try to have laws that provide different incentives.
Thomas Lumley (@tslumley) is Professor of Biostatistics at the University of Auckland. His research interests include semiparametric models, survey sampling, statistical computing, foundations of statistics, and whatever methodological problems his medical collaborators come up with. He also blogs at Biased and Inefficient See all posts by Thomas Lumley »
I thought this comment over at BoingBoing was an interesting concept:
“Maybe companies, like Google, who get sent DMCA takedown notices should employ a reputational model, where based on the number of incorrect DMCA notices sent from a given source, the reputation of that source diminishes and they have to jump through additional hoops before those notices are accepted.
Requiring valid signatures signed off by someone who will accept legal costs for missent notices, requiring them to be sent by post, requiring a valid human confirmation before action is taken, etc.
Start off with a score of 100 and knock off a point for every incorrect DMCA. Add points back on after a penalty period, or earned after every x number of correct notices sent.”
12 years ago
Unfortunately the law compels them to act (regardless of accusers past history) or Google risk losing their ‘safe harbour’ protections as an intermediary in a copyright dispute. Losing ‘safe harbour’ could increase copyright liability so much that their search engine would be too risky and expensive.
Recently with patents in the US there’s been the SHIELD Act which would put the financial responsibility on accusers when they lose a suit. Putting a financial liability on bad accusations is a reasonable step, and it could be applied to copyright too.
In the meantime however New Zealand’s copyright is much worse than the US. At least however the DMCA has a counternotice procedure … where if you’re falsely accused you can refute the claim and they will reinstate the content. New Zealand’s equivalent to the DMCA — called Section 92C — lacks a counternotice provision. Any company reinstating content does so without any legal protection.
12 years ago