April 24, 2014

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Targeted Copyright Enforcement vs. Inaccurate Enforcement

Let’s continue our discussion about copyright enforcement against online infringers. I wrote last time about how targeted enforcement can deter many possible violators even if the enforcer can only punish a few violators. Clever targeting of enforcement can destroy the safety-in-numbers effect that might otherwise shelter a crowd of would-be violators.

In the online copyright context, the implication is that large copyright owners might be able to use lawsuit threats to deter a huge population of would-be infringers, even if they can only manage to sue a few infringers at a time. In my previous post, I floated some ideas for how they might do this.

Today I want to talk about the implications of this. Let’s assume, for the sake of argument, that copyright owners have better deterrence strategies available — strategies that can deter more users, more effectively, than they have managed so far. What would this imply for copyright policy?

The main implication, I think, is to shed doubt on the big copyright owners’ current arguments in favor or broader, less accurate enforcement. These proposed enforcement strategies go by various names, such as “three strikes” and “graduated response”. What defines them is that they reduce the cost of each enforcement action, while at the same time reducing the assurance that the party being punished is actually guilty.

Typically the main source of cost reduction is the elimination of due process for the accused. For example, “three strikes” policies typically cut off someone’s Internet connection if they are accused of infringement three times — the theory being that making three accusations is much cheaper than proving one.

There’s a hidden assumption underlying the case for cheap, inaccurate enforcement: that the only way to deter infringement is to launch a huge number of enforcement actions, so that most of the would-be violators will expect to face enforcement. The main point of my previous post is that this assumption is not necessarily true — that it’s possible, at least in principle, to deter many people with a moderate number of enforcement actions.

Indeed, one of the benefits of an accurate enforcement strategy — a strategy that enforces only against actual violators — is that the better it works, the cheaper it gets. If there are few violators, then few enforcement actions will be needed. A high-compliance, low-enforcement equilibrium is the best outcome for everybody.

Cheap, inaccurate enforcement can’t reach this happy state.

Let’s say there are 100 million users, and you’re using an enforcement strategy that punishes 50% of violators, and 1% of non-violators. If half of the people are violators, you’ll punish 25 million violators, and you’ll punish 500,000 non-violators. That might seem acceptable to you, if the punishments are small. (If you’re disconnecting 500,000 people from modern communications technology, that would be a different story.)

But now suppose that user behavior shifts, so that only 1% of users are violating. Then you’ll be punishing 500,000 violators (50% of the 1,000,000 violators) along with 990,000 non-violators (1% of the 99,000,000 non-violators). Most of the people you’ll be punishing are innocent, which is clearly unacceptable.

Any cheap, inaccurate enforcement scheme will face this dilemma: it can be accurate, or it can be fair, but it can’t be both. The better is works, the more unfair it gets. It can never reach the high-compliance, low-enforcement equilibrium that should be the goal of every enforcement strategy.

Comments

  1. Crosbie Fitch says:

    Again, you’re assuming that the whole purpose is deterrence – to enforce copyright or to persuade greater obedience to it.

    The ability to exclude COMPETITORS from the Internet is the ultimate objective.

    With such power to exclude anyone you can present competitors with an ultimatum: sell your business to us or get off our property.

    They only need this power. They aren’t really going to be so silly as to remove their customers.

    Come on, they may be unscrupulous, but they aren’t stupid.

    • news_up says:

      Copyright on the Internet is a very complex topic. For example – for the authors of articles it’s not easy to prove that they are the owners of copyright. There are things for which there are no copyrights in many countries – such as the latest news headlines or headline news updates. So what’s the problem not only in respect of copyright, but also in international law

  2. Anon says:

    It would be interesting to see these three strikes laws applied to companies that commit copyright infringement. Will they be potentially subject to the same punishments as individuals or will they be able to use their greater resources to avoid punishment, even when guilty of infringement?

    If nearly baseless claims can be utilised to remove a businesses Internet access temporarily or permanently, their less ethical competitors will be highly likely to attempt such actions.

    • Anonymous says:

      If XYZ Corp gets shut off internet , they have an easy option: start a wholly-owned daughter WXYZ Corp, that “by pure chance” happens to have the same street address, the same phone number, the same staff, the same customers, the same products…. Since this new company has not done anything (yet) it shouldn’t be cut off internet (at least not in the eyes of the law, I fear…).

      When the “new company” gets caught infringing on sobody’s copyright, XYZ Corp just rename WXYZ Corp to ZYXW Corp and repeat as nauseam as needed.

      I don’t really see any way the law could stop this kind of behaviour, other than the obvious: don’t implement a three-strikes-and-you’re-out strategy for internet access.

  3. Anonymous says:

    … unless you are of the opinion that current law is out of balance and needs to change.

  4. Chris Goldman says:

    Any cheap, inaccurate enforcement scheme will face this dilemma: it can be accurate, or it can be fair, but it can’t be both.

    Did you mean “effective” here, rather than “accurate”? You’ve already said the scheme is cheap and inaccurate.

  5. Seth Finkelstein says:

    “Let’s assume, for the sake of argument, that copyright owners have better deterrence strategies available …”

    Recipe for Tiger Soup
    First, catch a tiger…

  6. Crosbie Fitch says:

    You’re forgetting that corporations were first privileged with the suspension of our cultural and technological liberty (in the 18th century thanks to copyright and patent), subsequently privileged with personhood, and now they’re to be privileged with the power to exclude us from The Internet.

    Only equals are entitled to due process in any conflict. When immortal corporations are privileged above mere mortals such as us, then due process is simply due notice, e.g. two warnings preceding a final order. Separated by a few days if you’re lucky.

    I think we’re going to have to create emergency fail-over Internet connections using WiMAX.

    Unless that is, you’re wealthy enough to afford lawyers who can prove your innocence to the satisfaction of a tribunal who may then deign to consider you have grounds for an appeal against your Internet disconnection. This may take a considerable amount of time, and may be particularly difficult if your computer equipment has already been seized and your assets frozen to recover the ill gotten gains of your piracy.

  7. J Smith says:

    Your “selective enforcement” approach seems to me to have a flaw when the number of potential targets is very large. Most people will be in, say, the bottom two-thirds (three-quarters, or whatever) of the ordered list, and there will be enough clueless targets in the first third (quarter, …) that the enforcers will never get nearly to the end.

  8. Richard says:

    Several comments on the previous post pointed out that the logic couldn’t possibly work when the numbers were large.
    The problem is that deterrence of a large number by sanctions on a small number inevitably requires a very long logical chain. This in turn requires very solid links. Such solid links only exist in pure mathematics.
    To see how this kind of logic is likely to play out in the real world consider the situation on the road when one lane has been closed ahead. People who drive up the empty “closed” lane inevitably get let in by someone – even though almost everyone in the queue tries to close ranks and stop them, In practice it is safe to nip into the empty lane with just 20-30 cars in the queue ahead. With millions in the queue…..well..

  9. Catty says:

    I really don’t see this working well, as far as I have been able to determine from papers and rumours the false positive rate is around 25% without active spoofing. During some heightened enforcements periods accuracy seems to dip well below the 50% mark, with accuracy going as low as 2% if some university network admins are to be believed. That is 2% ‘correct’* accusations, not false ones.

    You correctly point out that even a 1% error rate would be a big problem, but most people will just pay 3000$ rather than go through several years of lawsuits. However the proposed 3 strikes regime would have the advantage that the RIAA would no longer have an incentive to falsely accuse people, and presumably it would be cheaper for people to just prove their innocence.

    However I am very much concerned over how any 3 strikes law would be implemented, could people just move to a new ISP? What about when people move? How about unsecured WiFi? Considering a friend gets a dozen open networks in his appertment, and a bunch of secured ones I just don’t see this working in densly populated areas.
    What about areas where several people live together or business connections? I could see this sort of working on university networks, but I fully expect that university students would have the skills and time to find cracks in the scheme.

    * Correct in quotes, they look at traffic around the accused time to see if there is a pattern indicative of P2P use, but that doesn’t indicate what it is used for. So fair use, or downloading something not copyrighted etc would be counted as a correct accusation in this case.

  10. Anonymous says:

    Have you considered that elimination of due process may be the main objective rather than just an unfortunate side effect?

  11. Anonymous says:

    “A high-compliance, low-enforcement equilibrium is the best outcome for everybody.”

    When you’re talking about compliance with something that genuinely is in the best interests of society, that might be true. But we were, instead, talking about copyright, which impoverishes society to enrich a few privileged corporate special interests; the suppression of a positive-sum activity that otherwise threatens a few outmoded businesses’ monopoly rents.

  12. RonK says:

    Barring laws (or an enforcement environment) which enable effectively warrantless searches for media which is assumed to be infringing if proof-of-purchase cannot be produced, rampant copyright infringement cannot be controlled.

    In an environment where public transfer over the net is viewed as too dangerous, people will start to organize small “copying get-togethers” to do the work of grassroots distribution. If you add in social networking which enables you to know which of your friends’ friends’ … friends has the media you want, and a few “hubs” which synchronize/exchange large media libraries via darknets, you have a distribution network which would require paying real undercover investigators, making each (dragnet) prosecution more complex and much, much more expensive.

    And if things started to get draconian enough, the general public would learn about things like CC licensing and start to turn away from the “dangerous” media to “safe” indie offerings.

    • Crosbie Fitch says:

      You make a good point on copyright becoming synonymous with dangerous, and copyleft becoming synonymous with safe.

      When people are not only denied the liberty to share and build upon their own culture, but their culture becomes a severe hazard if not toxic, then copyright will snap.

      The problem is though, by the time copyright snaps and is abolished, the publishing corporations may have already taken possession of The Internet. They can then say “Sure, copy all you want. We don’t care any more. We now get to charge monopoly rents on use of the Internet (in exchange for enabling the state to effectively censor all public communications)”.

      ACTA foresees the end of copyright, and thus must obtain the power to exclude from the Internet. It’s not about copies. It’s about having control over all channels that enable communication with the public.

  13. Eric Hellman says:

    Doesn’t your argument assume that enforcement strategy is fixed (i.e. independent of compliance rate?) A more realistic assumption is that a fixed budget would be allocated to enforcement. As compliance increases, more money per enforcement action would be available, and accuracy could ratchet up.