The Unending Search for the Optimal Infringement Filter
Columbia Law Review Sidebar, Vol. 112, April 12, 2012
25 Pages Posted: 27 Sep 2016
Date Written: 2012
Professor Edward Felten has observed, "[i]n technology policy debates, lawyers put too much faith in technical solutions, while technologists put too much faith in legal solutions." In their Article, The Best Available Technology Standard, Lital Helman and Professor Gideon Parchomovsky demonstrate the power and potential consequences of "Felten's Law" as they consider whether the current "safe harbor" architecture of the Digital Millennium Copyright Act ("DMCA") strikes the appropriate public policy balance concerning online copyright infringement and the open Internet, ultimately concluding that it cannot without the help of "the best filtering technology available" to guide and architect the contours of legally permissible behaviors online.
The authors' proposal would profoundly alter the legal and technical schemata of the Internet: offering immunity only for webhosts that employ the best available method for filtering content prior to publication. Like many technologies, the idea of an optimal infringement filter-described as a rule-based, machine-implemented algorithmic approach to identifying and preventing infringement versus the more standards-based approach of the human mind and judicial enforcement-provides an attractive yet deceptive solution to the authors' copyright quandary.
Online infringement is a hard problem, both quantitatively and qualitatively. Machines play a large role in creating its complexity and prevalence; therefore, it makes sense to conclude that they may play a role in its solution as well. Yet, the presumption that machines can help solve legal problems is a relatively unproven one. While there is much to admire in the authors' provocative and imaginative Article, there are significant questions and concerns that they need to address in order to justify such a drastic alteration of the legal architecture that the DMCA originally put into place. These range from evidentiary questions regarding what constitutes a "best" filter to doctrinal and definitional problems with the determination of infringement to constitutional and social welfare queries concerning due process and the First Amendment. While the authors initially address some of these questions, they, like their proposed solution, eventually defer to the machines themselves for answers, inadvertently implicating the very points that Felten has made.
Keywords: copyright, filtering, infringement, open internet, notice and takedown
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