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. See all posts by Thomas Lumley »