In its recent Grokster decision, the U.S. Supreme Court said that P2P technologies were not required to implement filtering for copyrighted content, but that failure to install filtering would be considered as one factor in assessing whether the software actively induces infringement (which is illegal).
Pam Samuelson wrote a column in Comm. ACM (access restricted; available to UM readers) in which she points out the many costs and infeasbilities of imposing a filtering duty on software creators (she argues that the blurry line is sufficiently problematic that filtering may become a de facto duty).
Some of the problems she identifies include keeping up with filename modifications, and fingerprint and watermark hash avoidance schemes. Generically, the problems include
- figuring out what to filter,
- keeping the filters up-to-date, and
- extending the filters to multiple forms of copyrighted works (not just, e.g., songs).
Without endorsing the Supreme Court decision or Pam’s fear that this decision will ultimate mean filtering is a de facto requirement for P2P file-sharing software, let’s think about how incentives might help solve the filtering problems she identifies.
While I was reading, I thought the problems might not be so difficult…if copyright owners bore some of the responsibility for implementing them. Copyright holders have the incentive to limit distribution of content; file-sharing software providers, if anything, have an incentive to maximize the distribution of content. If as a matter of policy, we want to maintain some limits on the distribution of copyrighted content, then it is incentive-compatible to put the copyright holders to work on implementing protection technologies. The alternative is to construct articial incentives (such as jail time) to shift that burden onto file-sharing software providers: why not use the natural incentives already in place?
For example, rather than requiring the P2P software publishers to collect a database of fingerprints, and to keep up with changes, they could implement a simple API that allows copyright owners to contribute the fingerprints of content they own. (A contributor could be required to register and provide a verifiable digital signature to help ensure that they were legitimate copyright holders.) That would largely deal with the problem of “what to filter”, and would be consistent with earlier requirements that copyright holders register their copyrights.