Over at CNet, Jennifer Guevin discusses a report from the content-tracking company “Attributor,” asserting that “The next big copyright battle may be fought in the kitchen.”

Attributor collected all the original recipes that appear on Epicurious.com, Allrecipes.com and RachaelRay.com. The software then checked those recipes against what was available elsewhere on the Web, looking for what they call matches–or instances in which two recipes are similar enough to be possibly copyright infringing.

For the purposes of the study, Attributor researchers defined a match as any two recipes in which at least 50 percent of the content was identical. Then they looked more closely at the matches with low percentages of similarity and threw out those they thought couldn’t be considered clear cases of copyright infringement.

Based on the results, Attributor found that copying recipes online is “rampant,” said Rich Pearson, senior marketing director for the company. Attributor found just over 10,000 copies of recipes that originated on the three sites. In more than 60 percent of those cases, the reposted recipes weren’t attributed to their original sources.

What Attributor didn’t note, because its software can’t possibly tell the difference, is that not all copying is infringement. This is particularly true of recipes, where the guts — the proportions of ingredients and the steps for combining them — is a “process” unprotectable by copyright. While the creative description of the crisp crust and tart-sweet filling of the perfect apple pie might contain sufficient expression to claim protection, the steps for making the dessert are in the public domain.

So Attributor might well have found 50% identity of content between a pair of pages because they offered instruction for the same dish, without finding any copying of copyrightable text. Even the surrounding prose might be so minimally expressive as to merge with the ideas. How many ways can one say “bake until crust is golden”? The cooking-instruction industry seems to be stronger than ever, notwithstanding the lack of copyright protection.

The failure to distinguish between copying and copyright infringement is likely to plague another new roll-out, YouTube’s video identification filter as well. YouTube notes one side of the problem: “No matter how accurate the tools get, it is important to remember that no technology can tell legal from infringing material without the cooperation of the content owners themselves,” but the other side is that with or without technology, copyright owners often overstate their rights.

If Video ID offers a block every time it recognizes copyrighted music, for example, it may fail to distinguish between parodic remix and infringement; if it blocks video matches, will it distinguish between scientific discussion on An Inconvenient Truth and wholesale copying? Since automated filters will never be able to distinguish between fair use and infringement — a task even judges find difficult — adding them to the YouTube workflow will likely make multimedia parody, criticism, and remix more difficult.