Articles by Ryan Radia

Ryan is associate director of technology studies at the Competitive Enterprise Institute, where his work focuses on adapting law and policy to the unique challenges of the information age. His research areas include privacy, IP telecommunications, competition policy, and media regulation.


SCOTUS Rules in Favor of Freedom and Privacy in Key Rulings

by on June 26, 2014 · 0 comments

Yesterday, June 25, 2014, the U.S. Supreme Court issued two important opinions that advance free markets and free people in Riley v. California and ABC v. Aereo. I’ll soon have more to say about the latter case, Aereo, in which my organization filed a amicus brief along with the International Center for Law and Economics. But for now, I’d like to praise the Court for reaching the right result in a duo of cases involving police warrantlessly searching cell phones incident to lawful arrests.

Back in 2011, when I wrote in a feature story in Ars Technica—which I discussed on these pages—police in many jurisdictions were free to search the cell phones of individuals incident to their arrest. If you were arrested for a minor traffic violation, for instance, the unencrypted contents of your cell phone were often fair game for searches by police officers.

Now, however, thanks to the Supreme Court, police may not search an arrestee’s cell phone incident to her or his arrest—without specific evidence giving rise to an exigency that justifies such a search. Given the broad scope of offenses for which police may arrest someone, this holding has important implications for individual liberty, especially in jurisdictions where police often exercise their search powers broadly.

 

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Has Copyright Gone Too Far? Watch This “Hangout” to Find Out

by on June 9, 2014 · 0 comments

Last week, the Mercatus Center and the R Street Institute co-hosted a video discussion about copyright law. I participated in the Google Hangout, along with co-liberator Tom Bell of Chapman Law School (and author of the new book Intellectual Privilege), Mitch Stoltz of the Electronic Frontier Foundation, Derek Khanna, and Zach Graves of the R Street Institute. We discussed the Aereo litigation, compulsory licensing, statutory damages, the constitutional origins of copyright, and many more hot copyright topics.

You can watch the discussion here:

 

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What PiracyData.org Really Says About Copyright: It’s Not Hollywood’s Fault

by on October 29, 2013 · 5 comments

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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Securing Copyrights Through Voluntary Cooperation?

by on September 18, 2013 · 0 comments

It’s been over five years since Congress passed major legislation addressing copyright protection, but this hasn’t stopped copyright owners from achieving real progress in securing their expressive works. In cooperation with private-sector stakeholders, rights holders have made several deals aimed at combating copyright infringement and channeling consumer demand for original content toward legitimate outlets. These voluntary agreements will be the subject of a hearing this afternoon (9/18) before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet. This panel marks the latest in a series of hearings the committee launched earlier this year to review the Copyright Act, much of which dates back to 1976 or earlier.

Copyright consensus may sound like an oxymoron, especially in the wake of last year’s bruising legislative battle over SOPA and PIPA. But in reality, there’s no shortage of common ground when it comes to copyright protection. Despite all the controversy that surrounds the issue, copyright isn’t so much a “conflict of visions”, to borrow from Thomas Sowell, but a conflict of tactics, as I argued earlier this year on Cato Unbound.

Indeed, with some notable exceptions, most scholars, business leaders, and policymakers accept that government has a legitimate and important role in securing to inventors and creators the fruits of their labors“. Unsurprisingly, the devil is in the details, where genuinely tough questions arise regarding the government’s proper role in policing the Internet for copyright violations. Should the law hold online intermediaries accountable for their users’ infringing acts? What remedies should the law afford rights holders whose works are unlawfully distributed all over the Internet, often by profit-generating foreign actors?

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CBS & Time Warner Cable Make a Deal to End Blackout

by on September 3, 2013 · 0 comments

Yesterday, Time Warner Cable and CBS reached a deal to end the weeks-long impasse that had resulted in CBS being blacked out in over 3 million U.S. households.

I predicted the two companies would resolve their differences before the start of the NFL season in a RealClearPolicy op-ed published last week:

From Los Angeles to New York, 3 million Americans in eight U.S. cities haven’t been able to watch CBS on cable for weeks, because of a business dispute between the network and Time Warner Cable (TWC). The two companies can’t agree on how much TWC should pay to carry CBS, so the network has blacked out TWC subscribers since August 1. With the NFL season kicking off on September 5, the timing couldn’t be worse for football fans.blackouts-work-1

Regulators at the Federal Communications Commission (FCC) face growing pressure to force the feuding companies to reach an agreement. But despite viewers’ frustrations with this standoff, government intervention isn’t the answer. If bureaucrats begin “overseeing” disputes between network owners and video providers, television viewers will face higher prices or lower-quality shows.

TWC and CBS are playing hardball over serious cash. CBS reportedly seeks to double its fee to $2 per subscriber each month, which TWC claims is an outrageous price increase. But CBS argues it costs more and more to develop hit new shows like Under the Dome, so it’s only fair viewers pay a bit more.

Both sides have a point. TWC is looking out for its millions of subscribers—and its bottom line—by keeping programming costs down. CBS, on the other hand, needs cash to develop creative new content, and hopes it can make some money doing so.

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Why the Lawsuit Challenging NSA Surveillance is Crucial to Internet Freedom

by on July 16, 2013 · 3 comments

In June, The Guardian ran a groundbreaking story that divulged a top secret court order forcing Verizon to hand over to the National Security Agency (NSA) all of its subscribers’ telephony metadata—including the phone numbers of both parties to any call involving a person in the United States and the time and duration of each call—on a daily basis. Although media outlets have published several articles in recent years disclosing various aspects the NSA’s domestic surveillance, the leaked court order obtained by The Guardian revealed hard evidence that NSA snooping goes far beyond suspected terrorists and foreign intelligence agents—instead, the agency routinely and indiscriminately targets private information about all Americans who use a major U.S. phone company.

It was only a matter of time before the NSA’s surveillance program—which is purportedly authorized by Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)—faced a challenge in federal court. The Electronic Privacy Information Center fired the first salvo on July 8, when the group filed a petition urging the U.S. Supreme Court to issue a writ of mandamus nullifying the court orders authorizing the NSA to coerce customer data from phone companies. But as Tim Lee of The Washington Post pointed out in a recent essay, the nation’s highest Court has never before reviewed a decision of the Foreign Intelligence Surveillance Act (FISA) court, which is responsible for issuing the top secret court order authorizing the NSA’s surveillance program.130606-NSA-headquarters-tight-730a-590x400

Today, another crucial lawsuit challenging the NSA’s domestic surveillance program was brought by a diverse coalition of nineteen public interest groups, religious organizations, and other associations. The coalition, represented by the Electronic Frontier Foundation, includes TechFreedom, Human Rights Watch, Greenpeace, the Bill of Rights Defense Committee, among many other groups. The lawsuit, brought in the U.S. district court in northern California, argues that the NSA’s program—aptly described as the “Assocational Tracking Program” in the complaint—violates the First, Fourth, and Fifth Amendments to the Constitution, along with the Foreign Intelligence Surveillance Act.

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3 Cell Phone Unlocking Bills Introduced—What Would They Accomplish?

by on March 16, 2013 · 0 comments

In the past couple weeks, three bills addressing the legality of cell phone unlocking have been introduced in the Senate:

  • Sens. Leahy, Grassley, Franken, and Hatch’s “Unlocking Consumer Choice and Wireless Competition Act” (S.517)
  • Sen. Ron Wyden’s “Wireless Device Independence Act” (S.467)
  • Sen. Amy Klobuchar’s “Wireless Consumer Choice Act” (S.481)

This essay will explain how these bills would affect users’ ability to lawfully unlock their cell phones.

Background

If you buy a new cell phone from a U.S. wireless carrier and sign a multi-year service contract, chances are your phone is “locked” to your carrier. This means if you want to switch carriers, you’ll first need to unlock your phone. Your original carrier may well be happy to lend you a helping hand—but, if not, unlocking your phone may violate federal law.4s-unlock

The last few months have seen an explosion of public outcry over this issue, with a recent White House “We the People” petition calling for the legalization of cell phone unlocking garnering over 114,000 signatures—and a favorable response from the Obama administration. The controversy was sparked in October 2012, when a governmental ruling (PDF) announced that unlocking cell phones purchased after January 26, 2013 would violate a 1998 federal law known as the Digital Millennium Copyright Act (the “DMCA”).

Under this law’s “anti-circumvention” provisions (17 U.S.C. §§ 1201-05), it is generally illegal to “circumvent a technological measure” that protects a copyrighted work. Violators are subject to civil penalties and, in serious cases, criminal prosecution.

However, the law includes an escape valve: it empowers the Librarian of Congress, in consultation with the Register of Copyrights, to periodically determine if any users’ “ability to make noninfringing uses . . . of a particular class of copyrighted works” is adversely affected by the DMCA’s prohibition of tools that circumvent access controls. Based on these determinations, the Librarian may promulgate rules exempting categories of circumvention tools from the DMCA’s ban.

One such exemption, originally granted in 2006 and renewed in 2010, permits users to unlock their cell phones without their carrier’s permission. (You may be wondering why phone unlocking is considered an access control circumvention—it’s because unlocking requires the circumvention of limits on user access to a mobile phone’s bootloader or operating system, both of which are usually copyrighted.)

But late last year (2012), when the phone unlocking exemption came up for its triennial review, the landscape had evolved regarding a crucial legal question: do cell phone owners own a copy of the operating system software installed on their phone, or are they merely licensees of the software?

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On Copyright and Business Models: Why ivi Deserved to Be Shut Down

by on September 19, 2012 · 9 comments

Imagine a service that livestreams major broadcast television channels over the Internet for $4.99 a month — no cable or satellite subscription required. For an extra 99 cents a month, the service offers DVR functionality, making it possible to record, rewind, and pause live broadcast television on any broadband-equipped PC.

If this service sounds too good to be true, that’s because it is. But for a time, it was the business model of ivi. Cheaper than a cable/satellite/fiber subscription and more reliable than an over-the-air antenna, ivi earned positive reviews when it launched in September 2010.

Soon thereafter, however, a group of broadcast networks, affiliates, and content owners sued ivi in federal court for copyright infringement. The court agreed with the broadcasters and ordered ivi to cease operations pending the resolution of the lawsuit.

ivi appealed this ruling to the 2nd Circuit, which affirmed the trial court’s preliminary injunction earlier this month in an opinion (PDF) by Judge Denny Chin. The appeals court held as follows:

  • The rights holders would likely prevail on their claim that ivi infringed on their performance rights, as ivi publicly performed their copyrighted programs without permission;
  • ivi is not a “cable system” eligible for the Copyright Act’s compulsory license for broadcast retransmissions, as ivi distributes video over the Internet, rather than its own facilities;
  • Allowing ivi to continue operating would likely cause irreparable harm to the rights holders, as ivi’s unauthorized distribution of copyrighted programs diminishes the works’ market value, and ivi would likely be unable to pay damages if it loses the lawsuit;
  • ivi cannot be “legally harmed by the fact that it cannot continue streaming plaintiffs’ programming,” thus tipping the balance of hardships in plaintiffs’ favor;
  • While the broad distribution of creative works advances the public interest, the works streamed by ivi are already widely accessible to the public.

As much as I enjoy a good statutory construction dispute, to me, the most interesting question here is whether ivi caused “irreparable harm” to rights holders.

Writing on Techdirt, Mike Masnick is skeptical of the 2nd Circuit’s holding, criticizing its “purely faith-based claims … that a service like ivi creates irreparable harm to the TV networks.” He argues that even though ivi “disrupt[s] the ‘traditional’ way that [the broadcast television] industry’s business model works … that doesn’t necessarily mean that it’s automatically diminishing the value of the original.” Citing the VCR and DVR, two technologies that disrupted traditional methods of monetizing content, Mike concludes that “[t]here’s no reason to think” ivi wouldn’t “help [content owners’] business by increasing the value of shows by making them more easily watchable by people.”

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Revised Cybersecurity Act Makes Meaningful Progress on Privacy

by on July 20, 2012 · 0 comments

By Ryan Radia and Berin Szoka

A new version of the Cybersecurity Act of 2012 was introduced last night (PDF), and a vote on the Senate floor reportedly may occur as early as next week. Although we’re still digesting the 211-page bill, its revised information sharing title stands out for its meaningful safeguards regarding what cybersecurity information may be shared by providers and its limits on how government may use shared information. Such prudence is of utmost importance in any bill that gives private entities blanket immunity from civil and criminal laws, including the common law, for activities such as cybersecurity information sharing.

By way of background, our organizations—the Competitive Enterprise Institute and TechFreedom— joined several other free market groups in sending a coalition letter to House leadership back in April regarding CISPA (which ultimately passed that chamber). While we support legislation streamlining federal laws to ensure cybersecurity information flows freely among private companies and, where appropriate, to and from the government, we urged important changes to CISPA to limit potential governmental abuses and meaningfully protect individuals’ private information. Unfortunately, most of our suggestions were not reflected in the final version of that bill.

We’re very glad to see that many of our free market principles are now reflected in Title VII of the Cybersecurity Act (the part of the bill that deals with information sharing). The bill’s sponsors adopted many significant, positive changes to Title VII to better protect privacy and individual liberties, including:

  • Allowing individuals harmed by governmental misuse of shared cyber threat information to sue the federal government for actual or statutory damages of $1000 (whichever is greater);
  • Proscribing all governmental use and sharing of cyber threat information for purposes unrelated to cybersecurity, except to avert imminent threats of death or serious bodily harm or sexual exploitation of minors;
  • Barring the federal government from conditioning the award of a federal grant, contract, or purchase on a private entity’s sharing of cybersecurity threat information (except in limited circumstances);
  • Immunizing only private entities that share cybersecurity threat information upon a reasonable and good faith belief that such sharing is authorized by the Title;
  • Providing for meaningful oversight of information sharing and use by the Privacy and Civil Liberties Oversight Board.

We also applaud Senators Franken, Durbin, Coons, Wyden, Blumenthal, and Sanders, whose efforts made these important revisions to the Cybersecurity Act possible. It’s not every day that CEI or TechFreedom praise members of Congress—or government in general!  We do so here because the changes to Title VII of the Cybersecurity Act will meaningfully reduce the likelihood that the bill, if enacted, will enable government to impermissibly access and abuse citizens’ private information. (For more on changes to the Cybersecurity Act, see this ACLU blog post by Michelle Richardson.)

To be sure, we still have serious concerns about Title VII of the bill — and even greater concerns about other provisions in the bill, especially those regulating cybersecurity of “critical infrastructure”. We’ll offer plenty of criticism about those provisions in coming days, but for now, seeing a few rays of light from Capitol Hill is enough to give us pause.

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Future of Video Forecast: Sunny, With a Chance of Regulation

by on June 26, 2012 · 0 comments

On Wednesday morning, the U.S. House of Representatives Energy & Commerce Subcommittee on Communications and Technology will hold a hearing on “The Future of Video.”

As we Tech Liberators have long argued on these pages (1, 2, 3, 4, 5, 6, 7), government’s hands have been all over the video market since its inception, primarily in the form of the FCC’s rulemaking and enforcement enabled by the Communications Act. While the 1996 Telecommunications Act scrapped some obsolete video regulations, volumes of outdated rules remain law, and the FCC wields vast and largely unchecked authority to regulate video providers of all shapes and sizes. Wednesday’s hearing offers members an excellent opportunity to question each and every law that enables governmental intervention—and restricts liberty in—the television market.

It’s high time for Congress to free up America’s video marketplace and unleash the forces of innovation. Internet entrepreneurs should be free to experiment with novel approaches to creating, distributing, and monetizing video content without fear of FCC regulatory intervention. At the same time, established media businesses—including cable operators, satellite providers, telecom companies, broadcast networks and affiliates, and studios—should compete on a level playing field, free from both federal mandates and special regulatory treatment.

The Committee should closely examine the Communications and Copyright Acts, and rewrite or repeal outright provisions of law that inhibit a free video marketplace. Adam Thierer has chronicled many such laws. The Committee should, among other reforms, consider:

Here’s to the success of Sen. Jim DeMint, Rep. Steve Scalise, and other members of Congress who are working to achieve real reform and ensure that the future of video is bounded only by the dreams of entrepreneurs.

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