The Algorithm Defense

I am not ashamed to admit that I don’t know how algorithms work. To be totally honest, I didn’t even know how to spell algorithm before I spell checked it. I thought there was an “i” between the h and the m. But that’s not what’s important. A recent case from a federal court in Massachusetts suggests that there may be an algorithm defense to contributory copyright liability. The plaintiff in the case alleged that a Web site called made bootleg copies of pharmacy textbooks available for free (am I the only one who never thought I’d see the terms “bootleg” and “pharmacy textbooks” in the same sentence?). The Web site was operated by a citizen of India, aka “not a deep pocket.” But the site had advertising, apparently placed there by a Massachusetts based company called Chitika, Inc. According to the complaint, Chitika holds itself out to the public as “a proven channel for targeting on-line consumers and qualified buyers.” The plaintiff contended that the advertising supplied by Chitka allowed the Web site to exist, and so, Chitika was a “contributory infringer.” But the court disagreed. It found that a finding of contributory infringement requires a finding that the contributory infringer knowingly made a material contribution to the alleged infringement. Chitika countered with this description of its business model:

Chitika’s technology selects the ad to display automatically, without human intervention, by means of a complex proprietary algorithm to present advertisements on a publisher’s website, based upon many factors, including, among many others, information about the visitor to the website, terms entered into a search engine, and the words that appear on the publisher’s website. Chitika did not and does not have any knowledge or notice of whether a site contains allegedly infringing materials, and it does not have any mechanism by which it can determine whether a publisher’s site contains allegedly infringing materials.

In other words, the ads land where they land based on the math. And Chitika can’t be responsible for what happens on any given site. As I say, I don’t know how algorithms work, but they seem to be a good defense.