Felten on Kazaa in Oz

Ed Felten has explained why the p2p filtering ordered by the Australian judge in the Kazaa case will prove to be problematic in practice.

Designing such a filter is much harder than it sounds, because there are so many artist names and song names. These two namespaces are so crowded that a great many common names given to non-infringing recordings are likely to contain forbidden patterns.

The judge’s order uses the example of the band Powderfinger. Presumably the modified version of Kazaa would ban searches with “Powderfinger” as part of the artist name. This is all well and good when the artist name is so distinctive. But what if the artist name is a character string that occurs frequently in names, such as “beck”, “smiths”, or “x”? (All are names of artists with copyrighted recordings.) Surely there will be false positives.

It’s even worse for song names. You would have to ban simple words and phrases, like “Birthday”, “Crazy”, “Morning”, “Sailing”, and “Los Angeles”, to name just a few. (All are titles of copyrighted recordings.)

The judge’s order asks the parties to agree on the details of how a filter will work. If they can’t agree on the details, the judge will decide. Given the enormous number of artist and song names, and the crowded namespace, there are a great many details to decide, balancing over- and under-inclusiveness. It’s hard to see how the parties can agree on all of the details, or how the judge can impose a detailed design. The only hope is to appoint some kind of independent arbiter to make these decisions.

Ultimately, I think the tradeoff between over- and under-inclusiveness will prove too difficult — the filters will either fail to block many infringing files, or will block many non-infringing files, or both.

This is the same kind of filtering that Judge Patel ordered Napster to use, after she found Napster liable for indirect infringement. It didn’t work for Napster. Users just changed the spelling of artist and song names, adopting standard misspellings (e.g., “Metallica” changed to “Metalica” or “MetalIGNOREica” or the Pig Latin “Itallicamay”), or encoding the titles somehow. Napster updated its filters to compansate, but was always one step behind. And Napster’s job was easier, because the filtering was done on Napster’s own computers. Kazaa will have to try to download updates to users’ computers every time it changes its filters.