Monday, September 05, 2005

Kazaa Down Under: The Futility of Filters

Well, it looks like the Australian Judge in the Kazaa case has ordered that future versions of Kazaa software must have filters that exclude copyrighted works (see Bloomberg article)...

Exactly how is that supposed to work?

Here's an example... Let's say I've tried to share a file on Kazaa called "metallica.ogg".

This file could be any number of things:

  1. It could be a copyrighted Metallica song,
  2. It could be filled with a bunch of random noise.
  3. Or it could be a recording of me saying "Metallica is an excellent source of strong vaccuum!!!"
With the current state of filtering technology, as I understand it, I would not be able to share this file on Kazaa under any circumstances because the filename contains the word "metallica". Unfortunately, copyright infringement would only have occurred in the first case.

In the second case, when the file just contains random noise, there's no human creativity involved in the creation of this file, so it would be un-copyrightable. There would be no legal reason to prohibit its publication or dissemination whatsoever.

The last case is more interesting... Metallica's position on peer-to-peer file sharing is well known, but how is Kazaa supposed to know what my position is?

There is no "shareable" bit in the file format that says "it's okay to share me."

There is no contact information in the file either, so Kazaa has no way to contact the copyright holder (me!) to ask whether it's legal to share the file or not...

Lastly, even if Kazaa could verify that the file is copyrighted, how can Kazaa (or Kazaa's software) determine what copyright license is associated with this file? Am I using the RIAA copyright license, "Thou shalt not copy, even for thine own use?" Have I licensed this file under a Creative Commons license that would allow copying? And if I did use a Creative Commons license, which one did I use?

Leaving the computers and the Internet out of the discussion just for a moment, it's my position that it would be impossible for any person to determine whether or not my file can be legally shared...

Now in a sane world I wouldn't have to explain this, but we left that world behind a long time ago... You can't program a computer to perform a task that humans don't understand how to do themselves...

The fundamental problem is
that there isn't sufficient information in my "metallica.ogg" file for any human, or computer, to be able to reliably determine whether or not "sharing" is allowed...

The only way I can see this ever working properly is if two things happen first:
  1. We start using file formats that can support Copyright information directly in the file itself (e.g. copyright registration #, license terms, copyright holder, etc.), and
  2. We build on-line repositories of copyright registrations so that software like Kazaa can verify whether or not it should share the file.
Until these things occur, filtering will be nothing more than court-mandated guesswork and will never, ever, function the way it is intended to...

Don't worry, I'm not holding my breath.