Copyright

The House Subcommittee on Communications and Technology will soon consider whether to reauthorize the Satellite Television Extension and Localism Act (STELA) set to expire at the end of the year. A hearing scheduled for this week has been postponed on account of weather.

Congress ought to scrap the current compulsory license in STELA that governs the importation of distant broadcast signals by Direct Broadcast Satellite providers.  STELA is redundant and outdated. The 25 year-old statute invites rent-seeking every time it comes up for reauthorization.

At the same time, Congress should also resist calls to use the STELA reauthorization process to consider retransmission consent reforms.  The retransmission consent framework is designed to function like the free market and is not the problem.

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I’m pleased to announce that Alex Tabarrok and I have a new working paper out from the Mercatus Center today, “Public Choice and Bloomington School Perspectives on Intellectual Property.” The paper will appear in Public Choice in 2014.

Here’s the abstract:

We mine two underexplored traditions for insights into intellectual property: the public choice or Virginia school, centered on James Buchanan and Gordon Tullock, and the Bloomington or Institutional Analysis and Development school, centered on Elinor Ostrom and Vincent Ostrom. We apply the perspectives of each school to issues of intellectual property and develop new insights, questions, and focuses of attention. We also explore tensions and synergies between the two schools on issues of intellectual property.

The gist of the paper is that the standard case for intellectual property—that a temporary monopoly is needed in order to recoup the sunk costs of innovation or creation—ignores issues raised by the two schools we investigate.

From a public choice perspective, a temporary monopoly provides enormous opportunities for rent seeking. Copyright and patent owners are constantly manipulating the political environment to expand either the duration of the monopoly or the scope of what can be monopolized. We document the evolution of intellectual property in the United States from its modest origins to its current strong and expansive state.

From a Bloomington perspective, the standard case for IP wrongly treats the commons as a kind of wasteland. In fact, numerous innovations and sprawling creative works occur without monopolization—just look at Wikipedia. Innovation occurs when the right institutional structures are in place, and intellectual property that is too severe can hamper the smooth operation of these institutions. Too much IP can harm as much as too little.

Read the whole thing, cite it copiously, etc.

Anupam Chander, Director of the California International Law Center and Martin Luther King, Jr. Hall Research Scholar at the UC Davis School of Law, discusses his recent paper with co-author Uyen P. Lee titled The Free Speech Foundations of Cyberlaw. Chander addresses how the first amendment promotes innovation on the Internet; how limitations to free speech vary between the US and Europe; the role of online intermediaries in promoting and protecting the first amendment; the Communications Decency Act; technology, piracy, and copyright protection; and the tension between privacy and free speech.

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Ryan Radia is one of the few people in the world with whom it is a true pleasure to discuss copyright issues. We see eye to eye on almost everything, but there is enough difference in our perspectives to make things interesting. More importantly, Ryan’s only religious fealty is to logic and the economic way of thinking, which makes for reasoned and respectful conversations. So I am delighted that he took the time to conduct one of his patented Radianalysis™ reviews of the issues raised by PiracyData.org. As is very often the case, I agree from top to bottom with what Ryan has laid out, and it has prompted some thoughts that I’d like to share.

What Ryan is addressing in his piece is the question of whether shortening or eliminating release windows would reduce piracy. He concludes that yes, “Hollywood probably could make a dent in piracy if it put every new movie on iTunes, Vudu, Google Play, Amazon, and Netflix the day of release. Were these lawful options available from the get-go, they’d likely attract some people who would otherwise pirate a hit new film by grabbing a torrent on The Pirate Bay.” That said, Ryan points out quite rightly that “even if Hollywood could better compete with piracy by vastly expanding online options for viewing new release films, this might not be a sound money-making strategy. Each major film studio is owned by a publicly-held corporation that operates for the benefit of its shareholders. In other words, the studios are in the business of earning profits, not maximizing their audiences.” I couldn’t have said it better myself.

One thing that caught me off guard when we launched PiracyData.org (but that in retrospect should not have), is that many people interpreted our attempt to create a dataset as a statement that Hollywood is to blame for its own piracy problem. As I’ve explained, I think it’s dumb to blame Hollywood for piracy, and doing so was not what motivated the project. What motivated the project was Hollywood’s claim that private third parties, such as search engines, have an obligation to do everything in their power to reduce piracy, and that companies like Google are not doing “enough” today.

As Ryan points out, the studios could probably curb piracy by changing their business model, but doing so might very well mean taking a cut in revenue. And as he also points out, the studios are not audience maximizers; they are profit maximizers. This is why they are not about to drastically change their business model anytime soon, which is their prerogative and one I understand. But then the question is, how many resources should we expect taxpayers and private third parties to spend to ensure that the studios can maximize their profits?

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Two weeks ago, with much fanfare, PiracyData.org went live. Created by co-liberators Jerry Brito and Eli Dourado, along with Matt Sherman, the website tracks TorrentFreak’s list of which movies are most pirated each week, and indicates whether and how consumers may legally watch these movies online. The site’s goal, Brito explains, is to “shed light on the relationship between piracy and viewing options.” Tim Lee has more details over on The Switch.

Assuming the site’s data are accurate—which it appears to be, despite some launch hiccups—PiracyData.org offers an interesting snapshot of the market for movies on the Internet. To date, the data suggest that a sizeable percentage of the most-pirated movies cannot be purchased, rented, or streamed from any legitimate Internet source. Given that most major movies are legally available online, why do the few films that aren’t online attract so many pirates? And why hasn’t Hollywood responded to rampant piracy by promptly making hit new releases available online?

Is Hollywood leaving money on the table?

To many commentators, PiracyData.org is yet another nail in Hollywood’s coffin. Mike Masnick, writing on Techdirt, argues that “the data continues to be fairly overwhelming that the ‘piracy problem’ is a problem of Hollywood’s own making.” The solution? Hollywood should focus on “making more content more widely available in more convenient ways and prices” instead of “just point[ing] the blame finger,” Masnick concludes. Echoing this sentiment, CCIA’s Ali Sternburg points out on DisCo that “[o]ne of the best options for customers is online streaming, and yet piracydata.org shows that none of the most pirated films are available to be consumed in that format.”

But the argument that Hollywood could reap greater profits and discourage piracy simply by making its content more available has serious flaws. For one thing, as Ryan Chittum argues in the Columbia Journalism Review, “the movies in the top-10 most-pirated list are relatively recent releases.” Thus, he observes, these movies are “in higher demand—including from thieves—than back-catalog films.” If PiracyData.org tracked release dates, each film’s recency of release might well turn out to be more closely correlated with piracy than availability of legitimate viewing options.

In fairness to Masnick and Sternburg, Hollywood probably could make a dent in piracy if it put every new movie on iTunes, Vudu, Google Play, Amazon, and Netflix the day of release. Were these lawful options available from the get-go, they’d likely attract some people who would otherwise pirate a hit new film by grabbing a torrent on The Pirate Bay. Those who pirate movies may be law-breaking misers, but they still weigh tradeoffs and respond to incentives like any other consumer. Concepts like legality may not matter to pirates, but they still care about price, quality, and convenience. This is why you won’t see a video that’s freely available in high-definition on YouTube break a Bittorrent record anytime soon.

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The launch of our new site PiracyData.org has predictably stirred up a good debate and I thought I’d chime in with a couple of thoughts. First I’d like to address the assertion by some, including Jeff Eisenach and Daniel Castro, that the point we’re trying to make with our site is that piracy is justified when content is not available legally. Here is Eisenach:

The Mercatus site is headlined by the following question: “Do people turn to piracy when the movies they want to watch are not available legally?” The implication is that piracy of movies that aren’t being offered legally is OK, or at least less bad, than piracy of movies that are currently available.

In both my post announcing the site and the Washington Post article Eisenach links to, as well as other articles about the site, I make it clear that there is no excuse for piracy. Piracy is illegal and wrong and copyright holders should be able to exercise their exclusive rights as they see fit during the term of copyright. I don’t know how much more explicit I can be. That said, although piracy is illegal and wrong, it may still be the case that the legal availability of content has an effect on piracy rates. That is a possibility that we are pointing out, not celebrating.

Second, I’d like to address the assertions by Eisenach and Castro that I am advocating that the movie industry should change its business model to collapse the theatrical release window, and that I think doing this will solve the piracy problem. Here again is Eisenach:

If you believe copyright holders have an obligation to make all content available to everyone all the time (as PiracyData.org seems to suggest), at what price would you require them to offer it?

In my post announcing the site I wrote that “their business model is their prerogative, and it’s none of my business to tell them how to operate,” and that’s something I repeated in other articles where I was quoted. So to be clear, I don’t think movie studios have any obligation to do anything. And I certainly don’t think that shortening their release windows would “eliminate piracy,” as Castro said.

Having addressed what I didn’t say, let me reiterate what I did say. The context for the creation of PiracyData.org was the MPAA report arguing that search engines were not taking sufficient voluntary measures to combat piracy. That study was released on the same day that the House held a hearing on “the role of voluntary agreements in U.S. intellectual property system” at which it was also argued that search engines, and Google in particular, have not done enough to combat piracy. The message from the content industry was, to echo Eisenach, that Google has an obligation to take all possible steps to end piracy. It is the nature of this notional obligation that we wanted to probe with PiracyData.org.

Hopefully I’ve been sufficiently clear that we all think that piracy is illegal and wrong and a problem that the content industry is rightfully up in arms about. So the question that we’re really debating is not whether piracy is right or wrong, but how to enforce copyright. How many resources should be expended, and by whom? That’s what this debate it really about.

Over a year ago, Google changed its algorithm to demote sites in its search results based on the number of copyright complaints those sites have received. An algorithmic change is as deep a change in a search engine’s business as one can expect. The message coming from the MPAA report and the House hearing, however, was that Google’s efforts were not enough, and that they should take further voluntary steps to not only remove infringing links from their search results, but also promote to the top legal sources.

PiracyData.org is never going to show all the ways that availability can affect piracy rates, and I’ve been clear about that both in my launch post and in interviews I’ve given, but I think that simply looking at the availability of the most-pirated movies will help shed some light on the simple question of whether people might turn to piracy when there is no legal version available. As the MPAA report noted, the majority of consumers who found themselves at infringing links “did not display an intention of viewing content illegally.” So the question is, why did these consumers who had no illegal intent end up at infringing sites? If they turned to piracy because they could not find a legal version, that would not justify piracy, but I hope we can all agree that it would be good to know whether it might be happening.

So it seems to me that we have identified two contentions of how piracy might be addressed. One is to have search engines voluntarily take more and more steps to change how they present the Web to users in order to address piracy. The other is that movie studios could shrink the theatrical release window. These are not mutually exclusive, and I think we see both happening. Google, as I mentioned, has already changed its algorithm and taken other measures, and as the MPAA has pointed out, the movie studios are working hard to make their movies available when and where consumers want. The question, therefore, is whether these efforts are enough or not, and what is the best way to enforce copyright.

Without a massive investment in enforcement, the sad reality is that piracy rates will never be zero. So what we should debate is whether additional enforcement efforts are worth the cost. As much as we might not want it to be the case, at some point there are diminishing marginal returns to more enforcement. If we determine that more could be done, then then the question is who should make that investment. Should it be search engines or the movies studios who should consider further changing how they do business?

Now, let me say that I am absolutely sympathetic to content owners who are put in incredibly unfair position of having to compete with piracy. As I said before, under the law they have the exclusive right to determine how they will distribute their works, and it is galling that they might feel forced by pirates to adopt a business model against their wishes. That is not fair to content owners. That said, the fact that they are facing this competition from piracy, as unfair and reprehensible as it is, is a fact that can’t be ignored.

In sum, these are the tough questions we should be discussing, not distractions about whether anyone is condoning piracy or whether anyone is blaming the victim, etc. We were hoping that PiracyData.org would spark that discussion, and boy have we had a big return on our investment! Now we need to make sure that we keep this debate on the serious and nuanced questions, and this is often hard to do over tweets and quotes in articles. So we are thinking of holding an event here at George Mason with all points of view represented to discuss these real questions. Stay tuned for details.

Today, we launched PiracyData.org, a site that takes the top ten most pirated movies of the week and mashes them up with data on legal online availability. Our hope is to build an extensive time-series dataset that can help shed light on the relationship between piracy and viewing options.

As might be expected with a new site, we’ve experienced some launch day glitches with the accuracy of our data and our visitors have thankfully pointed these out. We are of course committed to getting it right, so in the spirit of full transparency, we want to explain exactly what has gone wrong and how we plan on fixing it.

First, let me explain in detail how our site works and the exact data sources that we are using. Every hour, PiracyData.org polls the RSS feed for TorrentFreak’s most pirated movies posts. If the new week’s data is not yet in our database, we add it and fetch each movie’s availability from CanIStream.It.

CanIStream.It is a great site, but it is a little difficult for a computer to read. You can’t look up a movie by IMDB ID, which is pretty much the universal identifier for movies. What you can do, however, is pull up a CanIStream.It widget using IMDB ID.

The widget separates availability into four categories: streaming, rental, purchase, and physical DVDs. Given that this is a discussion of online piracy, we are really only interested in the first three categories, but we preserve all four. We scrape the page for movie availability on all of the services that the widget lists.

Making our site this way has presented us with four distinct issues that we only discovered once we started getting user feedback on the site:

1. Movie availability may change throughout the week

This is actually not a problem with our data, but with how it’s interpreted. Because the TorrentFreak data is backward-looking, reporting the most pirated movies in the previous week, we only want to report the online availability of movies as it appeared on Monday. That is, we are intentionally taking a snapshot of Monday availability. If movies become available for rental on Tuesday, we will continue to report throughout the remainder of the week that they were not available to rent on Monday, because that is most likely to reflect the state of the world during the preceding week when the piracy was happening.

A number of people have noted that Pacific Rim is now available for rental. We haven’t been able to confirm for sure, but we believe that it was added for rental at some point after we checked, and therefore this does not appear to be an error on our part. We’d appreciate it if anyone can confirm this because we want to make sure we are getting the right results.

2. Some services are available on CanIStream.It that are not listed in the widget, only on the main site

In particular, The Lone Ranger is available for rental only from a Sony service, but that service is absent in the CanIStream.It widget for not only The Lone Ranger but for all movies. Originally today, our site reported what the CanIStream.It widget reported, that the movie is not available for rental. However, when it was pointed out to us that CanIStream.It’s main site reports that The Lone Ranger is available on Sony, we updated our data to take account of that. We are going to find a way in the future to ensure that all services are automatically included in our dataset, but this means we may have to find another data source or resort to manual entry.

3. In at least one instance, CanIStream.It returned to us data for the wrong movie.

Here’s how the CanIStream.It widgets work: you go to the base url “http://www.canistream.it/external/imdb/” and add the IMDB ID for the movie you are querying. For example, since Pacific Rim’s ID is tt1663662, you can see the widget for the movie at http://www.canistream.it/external/imdb/tt1663662 .

This works perfectly most times, but bizarrely, it doesn’t work for This Is the End, whose IMDB is tt1245492. When you visit http://www.canistream.it/external/imdb/tt1245492 you get the CanIStream.It widget for Jay and Seth Vs. the Apocalypse, not This Is the End. As an outlier, this caught us totally by surprise, and we updated the data on our site to reflect the accurate data from This Is the End. Again, this is the kind of bug we could only have caught once we had lots of eyes on the site and we’re grateful for the feedback.

4. The site is built using the best available data.

TorrentFreak and CanIStream.It offer extremely useful data to the public. While we’ve had some issues incorporating the CanIStream.It data, we are grateful for the data they provide. CanIStream.It’s data is typically seen even among industry insiders as reliable. For instance, MPAA’s site wheretowatch.org directs their users to CanIStream.It as a source.

That said, if we want to build the canonical dataset on this issue, we have to do better. We need to make sure that there are no glitches. We would like to work with anyone with access to availability data to make sure that we can compile the most accurate data possible.

We’re not exactly sure what this entails yet. We may have to get availability data directly from the services themselves. If we can secure the cooperation of the services—for example if they would be willing to supply data on the date that each movie by IMDB number became available on their service—we could even compute availability data historically. TorrentFreak has data on pirated movies going back to 2006.

One thing is for certain: the dataset that we are proposing to build is important. We have provoked quite a reaction from people on both sides of this issue. We acknowledge that it has been a bumpy launch for our site, but we are committed to getting it right. We ask for everybody’s patience and good-faith assistance as we try to get there.

Today, Eli Dourado, Matt Sherman, and I launched PiracyData.org, a very simple site that tries to help answer the question, are the most-pirated movies each week available for legal streaming, digital rental, or digital purchase? We do this by mashing TorrentFreak’s weekly top-ten list of the most pirated movies on BitTorrent with Can I Stream It’s database of movie availability. The result if a single-page website that visualizes the results, as well as a downloadable dataset that will grow each week.

The idea for the site came to me last month when RIAA president Cary Sherman was testifying before Congress at a hearing on what further voluntary steps search engines could take to combat piracy. That same day, the MPAA had released a study that found that users who found themselves at URLs for infringing content had been “influenced” by search engines. This was reported in the press as “search engines lead to piracy.” The gist from the study and Sherman’s testimony was that search engines, and in particular Google, were not doing enough to address the fact that for some searches the top results include links to infringing content, and the implication, of course, is that if Google didn’t take voluntary action, perhaps Congress should require it to.

At the time I blogged an analysis of the MPAA study and noted that, according to the report, 58% of all visits to infringing URLs that were “influenced” by a search engine came from queries for either generic or title-based terms, not from the more-clearly suspicious “domain” terms. As the report remarked, this “indicat[es] that these consumers did not display an intention of viewing content illegally.” As I wrote at the time:

So the question is, why did these consumers who had no illegal intent end up at infringing sites? Could it be that they did not have a legal alternative to accessing the content they were seeking? That would not excuse their behavior, and it’s the movie industry’s prerogative whether and when to make their content available. Indeed release windows are part of its business model, although a business model seemingly in tension with consumer demand as evidenced by the shrinking theatrical release window. That all said, it’s not clear to me why search engines should be in the business of ensuring other industries’s business models remain unchanged.

After I wrote that it occurred to me that we could begin to collect data to answer that question, and so I asked Eli and Matt if they wanted to help me build the site. The initial answer the site is generating seems to be that very few are available legally.

To be clear, we only have three weeks of data so far, and we’ll get a better picture in the months ahead as the dataset grows. Additionally, proving the adage that given enough eyeballs all bugs are shallow, we’ve been alerted to the fact that a couple of the movies we were listing as unavailable this week are in fact available. Looking at the problem we found that although we were querying the correct IMDB ID for the movies, Can I Stream It was giving us back the wrong data. We’ve fixed the problem and updated the results. This is all to say that the site will prove its value a year from now when we have a substantial dataset.

That said, one implication of the early results may be that when movies are unavailable, illegal sources are the most relevant search results, so search engines like Google are just telling it like it is. That is their job, after all.

Also, while there is no way to draw causality between the fact that these movies are not available legally and that they are the most pirated, it does highlight that while the MPAA is asking Google to take voluntary action to change search results, it may well be within the movie studio’s power to change those results by taking voluntary action themselves. That is, they could make more movies available online and sooner, perhaps by collapsing the theatrical release window. Now, their business model is their prerogative, and it’s none of my business to tell them how to operate, but by the same token I I don’t see how they can expect search engines and Congress to bend over backwards to protect the business model they choose.

As we continue to debate what are the responsibilities of different actors in the Internet ecosystem related to piracy, we hope PiracyData.org will provide useful context.

Over the past year, as the debate over internet radio royalty rates has raged, I have been a lonely voice calling for the repeal for compulsory licensing of digital performance rights altogether. I did so at the Cato event for my book, Copyright Unbalanced, in January at a State of the Net panel, and in my Reason column. The reaction I often received was either one of outrage by the Pandoras of the world, or condescension for my naive optimism. Well, optimism can pay off. Yesterday Rep. Mel Watt, ranking member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, introduced the “Free Market Royalty Act,” which among other things gets rid of compulsory licensing.

The problem with the compulsory licensing scheme is twofold: Not only does it rely on federal bureaucrats to set the rates that artists must accept for their music (rather than allowing a free-market negotiation take place between copyright holders and those who want to broadcast their songs), but it also allows Congress to pick winners and losers by assigning different royalty rate standards to different users. As I explained in Reason:

While AM, FM, cable and satellite radio, and Internet radio services like Pandora can all opt for compulsory licenses, they each pay different royalty rates. The rates are set by a panel of government lawyers called the Copyright Royalty Board, and they have the effect of favoring some business models over others. Internet radio services pay over 60 percent of their revenue in royalties, while Sirius XM, the only satellite radio company, pays only 8 percent. AM and FM radio aren’t subject to a digital sound recording right, so it pays zero.

Watt’s bill would blow all this up, making terrestrial broadcasters, Internet radio services, and the rest to give up their price-fixed compulsory licenses and have to negotiate in a market the rates they pay. This truly levels the playing field, especially vis-a-vis interactive music services like Spotify and Rdio that have never benefited from compulsory licenses.

Whether you talk to supporters of Rep. Chaffetz’s Internet Radio Fairness Act or Rep. Nadler’s Interim FIRST Act, they each will say their bill is the true fre market approach, and that their rate-setting standard would best approximate a market. To them I say, nothing better approximates a market than the market itself, so if they are truly concerned about ensuring a free market level playing field, here is the way to do it.

One advantage of compulsory licensing is that it can reduce transactions costs. The Watt bill retains some of this advantage by designating SoundExchange, a nonprofit agency, as the common agent for copyright owners to facilitate negotiations, but allowing labels and artists to retain the right to opt-out and negotiate on their own. If this bill passes, I think we’ll see some very interesting experimentation with business models on the part of both the artists and the radio stations.

Finally, looking at the) press coverage of this bill, what has gotten the most attention is that it would, for the first time, require terrestrial AM/FM radio stations to negotiate and pay royalties for the sound recordings they broadcast. The way I see it, it’s not clear to me why broadcasters deserve yet another subsidy, so I shed no tears for them if this bill passes. Broadcasters argue that they provide promotional value for the songs they broadcast, that this benefits copyright holder, and that they should therefore continue to pay nothing. If it is indeed the case that airplay provides substantial promotional value, that will be taken into account in the course of negotiations and we should expect the ultimate rate to reflect that. Indeed, you can even imagine an outcome where the free market rate for terrestrial stations would remain at zero, or even that copyright holders would want to pay the stations. That’s the beauty of the market, so let’s unleash it.

Yesterday the MPAA issued a report commissioned from the global PR firm Millward Brown looking at "the role of search in online piracy." This coincided with the RIAA's Cary Sherman testimony before the House IP subcommittee that search engines are not doing enough to protect his industry from piracy. Here are some thoughts on the new report and the issue generally.

The report tries to ascertain how much of the traffic to infringing content is sent there by search engines. To measure this, the report employs "a customized, hybrid approach" that doesn't merely look at whether the visit to an infringing URL came from a link on a search page. Instead, it looks at whether a user searched for a "qualifying" search term within 20 minutes of reaching the infringing URL. "Qualifying" search queries, the report says, are associated with attempts to find illegal content and include "domain terms like '1Channel' and 'sidereel', generic terms like 'watch movies online' and movie and TV title-based terms like 'Dark Knight Rises'." As the report puts it, "This holistic approach contrasts with a more narrow definition that counts search only when a visit is preceded by a visit to a search engine."

The report is clear that "this method did not seek to indicate the degree to which infringing content appears on search engine results pages themselves," but merely sought to show that search engines "influenced the path" users took to reach infringing content. It concluded that "approximately 20% of all visits to infringing content were influenced by a search query from 2010-2012."

I have a couple of concerns with this methodology. First is that it implicitly puts search engines on the hook not just for linking directly to infringing content (for which there is a notice-and-takedown process available), but also for "influencing the path" that a user takes on their web travels. As we all know, correlation is not causation, so it's not clear to me that because I searched for "transformers" 15 minutes before I visited the URL for a pirate stream of Game of Thrones that necessarily means that the search engine influenced me in any way, and much less should be responsible for my behavior.

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