By Brent Skorup and Melody Calkins

Recently, the FCC sought comments for its Media Modernization Initiative in its effort to “eliminate or modify [media] regulations that are outdated, unnecessary, or unduly burdensome.” The regulatory thicket for TV distribution has long encumbered broadcast and cable providers. These rules encourage large, homogeneous cable TV bundles and burden cable and satellite operators with high compliance costs. (See the complex web of TV regulations at the Media Metrics website.)

One reason “skinny bundles” from online video providers and cable operators are attracting consumers is that online video circumvents the FCC’s Rube Goldberg-like system altogether. The FCC should end its 50-year experiment with TV regulation, which, among other things, has raised the cost of TV and degraded the First Amendment rights of media outlets.

The proposal to eliminate legacy media rules garnered a considerable amount of support from a wide range of commenters. In our filed reply comments, we identify four regulatory rules ripe for removal:

• News distortion. This uncodified, under-the-radar rule allows the commission to revoke a broadcasters’ license if the FCC finds that a broadcaster deliberately engages in “news distortion, staging, or slanting.” The rule traces back to the FCC’s longstanding position that it can revoke licenses from broadcast stations if programming is not “in the public interest.”
  Though uncodified and not strictly enforced, the rule was reiterated in the FCC’s 2008 broadcast guidelines. The outline of the rule was laid out in the 1998 case Serafyn v. CBS, involving a complaint by a Ukrainian-American who alleged that the “60 Minutes” news program had unfairly edited interviews to portray Ukrainians as backwards and anti-Semitic. The FCC dismissed the complaint but DC Circuit Court reversed that dismissal and required FCC intervention. (CBS settled and the complaint was dropped before the FCC could intervene.)
  “Slanted” and distorted news can be found in (unregulated) cable news, newspapers, Twitter, and YouTube. The news distortion rule should be repealed and broadcasters should have regulatory parity (and their full First Amendment rights) restored.


• Must-carry. The rule requires cable operators to distribute the programming of local broadcast stations at broadcasters’ request. (Stations carrying relatively low-value broadcast networks seek carriage via must-carry. Stations carrying popular networks like CBS and NBC can negotiate payment from cable operators via “retransmission consent” agreements.) Must-carry was narrowly sustained by the Supreme Court in 1994 against a First Amendment challenge, on the grounds that cable operators had monopoly power in the pay-TV market. Since then, however, cable’s market share shrank from 95% to 53%. Broadcast stations have far more options for distribution, including satellite TV, telco TV, and online distribution and it’s unlikely the rules would survive a First Amendment challenge today.


• Network nonduplication and syndicated exclusivity. These rules limit how and when broadcast programming can be distributed and allow the FCC to intervene if a cable operator breaches a contract with a broadcast station. But the (exempted) distribution of hundreds of non-broadcast channels (e.g., CNN, MTV, ESPN) show that programmers and distributors are fully capable of forming private negotiations without FCC oversight. These rules simply make licensing negotiations more difficult and invite FCC intervention.

Finally, we identify retransmission consent regulations and compulsory licenses for repeal. Because “retrans” interacts with copyright matters outside of the FCC’s jurisdiction, we encourage the FCC work with the Copyright Office in advising Congress to repeal these statutes. Cable operators dislike the retrans framework and broadcasters dislike being compelled to license programming at regulated rates. These interventions simply aren’t needed (hundreds of cable and online-only TV channels operate outside of this framework) and neither the FCC nor the Copyright Office particularly likes being the referees in these fights. The FCC should break the stalemate and approach the Copyright Office about advocating for direct licensing of broadcast TV content.

At the same time FilmOn, an Aereo look-alike, is seeking a compulsory license to broadcast TV content, free market advocates in Congress and officials at the Copyright Office are trying to remove this compulsory license. A compulsory license to copyrighted content gives parties like FilmOn the use of copyrighted material at a regulated rate without the consent of the copyright holder. There may be sensible objections to repealing the TV compulsory license, but transaction costs–the ostensible inability to acquire the numerous permissions to retransmit TV content–should not be one of them.

Economists can devise situations where transaction costs are immense and compulsory licenses are needed for a well-functioning market. Today, as when the compulsory license was created, the conventional wisdom is that TV compulsory licenses are still needed to prevent market failure.

In the 1970s, cable companies were capturing broadcast channels and retransmitting it to their subscribers for free because, per the Supreme Court, cable was a passive transmitter and didn’t need copyright permission. In 1976, to correct this perceived unfairness, Congress amended the Copyright Act and said this cable retransmission did necessitate copyright authorization. To make it easier on cable systems (most of which were small, local operations), the law created a compulsory license to broadcast TV content like NBC, ABC, and CBS programming.

The compulsory license primarily does two things: it provides cable operators local TV content royalty-free and provides non-local (“distant”) content (imagine a DC cable company importing a WGN broadcast from Chicago) at regulated rates.

As the House report says:

The Committee recognizes…that it would be impractical and unduly burdensome to require every cable system to negotiate with every copyright owner whose work was retransmitted by a cable system.

The Copyright Office, early on, opposed the compulsory license and has called for the repeal of the compulsory license to broadcast TV content since 1981. As the Register of Copyrights said at a 2000 congressional hearing,

A compulsory license is not only a derogation of a copyright owner’s exclusive rights, but it also prevents the marketplace from deciding the fair value of copyrighted works through government-set price controls.

But when the issue of repeal comes up, many parties cite “significant transaction costs” as a problem with conventional, direct licensing. GAO echoed these objections in an April 2015 report,

we have previously found that obtaining the copyright holders’ permission for all this content would be challenging. Each television program may have multiple copyright holders, and rebroadcasting an entire day of content may require obtaining permission from hundreds of copyright holders. The transaction costs of doing so make this impractical for cable operators.

That sounds sensible but we have powerful contradictory evidence: for decades, hundreds of TV channels requiring the bundling of thousands of copyright licenses are distributed seamlessly and completely outside of the compulsory license regime.

So it’s a mystery to me why analysts still talk about the difficulty in acquiring copyright permission from hundreds or thousands of rights holders. TV distributors outside of the compulsory license scheme do these complex content acquisition deals routinely. Hundreds of non-broadcast channels–like ESPN, CNN, Bravo, HGTV, MTV, and Fox News–are distributed to tens of millions of households via private contractual agreements and without regulated compulsory licenses. TBS, uniquely, in the late 1990s went from a broadcast channel, subject to a compulsory license, to a cable channel distributed via direct licensing with no apparent ill effects. Analysts raising the transactions costs for keeping compulsory licenses, to my knowledge, never explain why the market failure they predict is absent for these hundreds of cable and satellite channels.

Further, while cable and satellite companies don’t need to negotiate broadcast TV copyrights because of the compulsory license, the FCC’s retransmission consent process, part of the 1992 Cable Act, requires these companies to negotiate payment to retransmit broadcast signals–signals that contain the underlying copyrighted content. This process, though bizarre and artificial, is essentially the same negotiation cable and satellite companies would need to enter into in a world without compulsory license.

Finally, online programming from distributors like Hulu, Netflix, and (potentially) Apple TV operate entirely outside of the retrans-compulsory copyright system and undermine the transaction costs objection. Netflix, for instance, doesn’t negotiate with every individual right holder like GAO and Congress imply is necessary in a non-compulsory license regime. Content aggregators and intermediaries, not regulation, streamline the rights acquisition process without the need for a compulsory license. The ostensibly burdensome transaction costs don’t stop Netflix from licensing over 10,000 titles worth around $9 billion.

Certainly, converting from compulsory licensing to direct licensing has issues. Changing legal regimes can be costly and there is a need to prevent anticompetitive withholding of content. Understandably, many cable and satellite distributors oppose repeal of compulsory licenses if the complex FCC system of retransmission consent and must carry are maintained. I tend to agree. Nevertheless, it’s time to strike the transaction cost argument from the policy discussion. The predicted market failure is overcome by market forces.

For more background on TV regulation, see Adam Thierer and Brent Skorup, Video Marketplace Regulation: A Primer on the History of Television Regulation and Current Legislative Proposals (Mercatus working paper).

A bill before Congress would for the first time require radio broadcasters to pay royalty fees to recording artists and record labels pursuant to the Copyright Act. The proposed Fair Play Fair Pay Act (H.R. 1733) would “[make] sure that all radio services play by the same rules, and all artists are fairly compensated,” according to Congressman Jerrold Nadler (D-NY).

… AM/FM radio has used whatever music it wants without paying a cent to the musicians, vocalists, and labels that created it. Satellite radio has paid below market royalties for the music it uses …

The bill would still allow for different fees for AM/FM radio, satellite radio and Internet radio, but it would mandate a “minimum fee” for each type of service for the first time.

A February report from the U.S. Copyright Office cites the promotional value of airtime as the longstanding justification for exempting terrestrial radio broadcasters from paying royalties under the Copyright Act.

In the traditional view of the market, broadcasters and labels representing copyright owners enjoy a mutually beneficial relationship whereby terrestrial radio stations exploit sound recordings to attract the listener pools that generate advertising dollars, and, in return, sound recording owners receive exposure that promotes record and other sales.

The Copyright Office now feels there are “significant questions” whether the traditional view remains credible today. But significant questions are not the same thing as clear evidence.The problem with the proposed Fair Play Fair Pay Act is two-fold. First, notwithstanding that there is now some uncertainty around the traditional view of the AM/FM market, the bill mandates new minimum fees anyway. Second, it would empower a government panel consisting of three judges appointed by the Librarian of Congress to engage in what could become highly-subjective decision-making.

The Copyright Royalty Judges shall establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.

The most efficient way to get an accurate indicator of what a willing buyer and a willing seller would’ve negotiated in the marketplace is to call for private negotiations. The Copyright Office recommends this approach, too. Only when a music rights organization (MRO) and a licensee are unsuccessful in reaching an agreement on their own would the Copyright Royalty Board set the rates.

Each MRO would enjoy an antitrust exemption to negotiate performance and mechanical licenses collectively on behalf of its members—as would licensee groups negotiating with the MROs—with the CRB available to establish a rate in case of a dispute.

If Congress wants to end the terrestrial radio exemption, this is the better way to do it. Plainly, however, promotional value counts for something—and even the proposed Fair Play Fair Pay Act acknowledges that the value of the promotional effect qualifies as a legitimate form of compensation to recording artists and record labels.

Last week, two very interesting events happened in the world of copyright and content piracy. First, the Pirate Bay, the infamous torrent hosting site, was raided by police and removed from the Internet. Pirate Bay co-founder Peter Sunde (who was no longer involved with the project) expressed his indifference to the raid; there was no soul left in the site, he said, and in any case, he is “pretty sure the next thing will pan out.”

Second, a leaked trove of emails from the Sony hack showed that the MPAA continues to pursue their dream of blocking websites that contribute to copyright infringement. With the failure of SOPA in 2012, the lobbying organization has pivoted to trying to accomplish the same ends through other means, including paying for state attorneys-general to attack Google for including some of these sites in their index. Over at TechDirt, Mike Masnick argues that some of this activity may have been illegal.

I’ll leave the illegality of the MPAA’s lobbying strategy for federal prosecutors to sort out, but like some others, I am astonished by the MPAA’s lack of touch with reality. They seem to believe that opposition to SOPA was a fluke, whipped up by Google, who they will be able to neutralize through their “Project Goliath.” And according to a meeting agenda reported on by TorrentFreak, they want to bring “on board ‘respected’ people in the technology sector to agree on technical facts and establish policy support for site blocking.”

The reality is that opposition to SOPA-style controls continues to remain strong in the tech policy community. The only people in Washington who support censoring the Internet to protect copyright are paid by Hollywood. If, through their generous war chest, the MPAA were able to pay a “respected” tech-sector advocate to build policy support for site blocking, that very fact would cause that person to lose respect.

Moreover, on a technical level, the MPAA is fighting a battle it is sure to lose. As Rick Falkvinge notes, the content industry had a unique opportunity in 1999 to embrace and extend Napster. Instead, it got Napster shut down, which eventually led to decentralized piracy over bittorrent. Now, it wants to shut down sites that index torrents, but torrent indexes are tiny amounts of data. The whole Pirate Bay index was only 90MB in 2012, and a magnet link for an individual torrent is only a few bytes. Between Bitmessage and projects like Bitmarkets, it seems extremely unlikely that the content industry will ever be able to shut down distribution of torrent data.

Instead of fighting this inevitable trend, the MPAA and RIAA should be trying to position themselves well in a world in which content piracy will always be possible. They should make it convenient for customers to access their paid content through bundling deals with companies like Netflix and Spotify. They should accept some background level of content piracy and embrace at least its buzz-generating benefits. They should focus on soft enforcement through systems like six strikes, which more gently nudge consumers to pay for content. And they should explicitly disavow any effort to censor the web—without such a disavowal, they are making enemies not just of tech companies, but of the entire community of tech enthusiasts and policy wonks.

In 2012, the US Chamber of Commerce put out a report claiming that intellectual property is responsible for 55 million US jobs—46 percent of private sector employment. This is a ridiculous statistic if you merely stop and think about it for a minute. But the fact that the statistic is ridiculous doesn’t mean that it won’t continue to circulate around Washington. For example, last year Rep. Marsha Blackburn cited it uncritically in an oped in The Hill.

In a new paper from Mercatus (here’s the PDF), Ian Robinson and I expose this statistic, and others like them, as pseudoscience. They are based on incredibly shoddy and misleading reasoning. Here’s the abstract of the paper:

In the past two years, a spate of misleading reports on intellectual property has sought to convince policymakers and the public that implausibly high proportions of US output and employment depend on expansive intellectual property (IP) rights. These reports provide no theoretical or empirical evidence to support such a claim, but instead simply assume that the existence of intellectual property in an industry creates the jobs in that industry. We dispute the assumption that jobs in IP-intensive industries are necessarily IP-created jobs. We first explore issues regarding job creation and the economic efficiency of IP that cut across all kinds of intellectual property. We then take a closer look at these issues across three major forms of intellectual property: trademarks, patents, and copyrights.

As they say, read the whole thing, and please share with your favorite IP maximalist.

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:

Adam and I recently published a Mercatus research paper titled Video Marketplace Regulation: A Primer on the History of Television Regulation And Current Legislative Proposals, now available on SSRN. I presented the paper at a Silicon Flatirons academic conference last week.

We wrote the paper for a policy audience and students who want succinct information and history about the complex world of television regulation. Television programming is delivered to consumers in several ways, including via cable, satellite, broadcast, IPTV (like Verizon FiOS), and, increasingly, over-the-top broadband services (like Netflix and Amazon Instant Video). Despite their obvious similarities–transmitting movies and shows to a screen–each distribution platform is regulated differently.

The television industry is in the news frequently because of problems exacerbated by the disparate regulatory treatment. The Time Warner Cable-CBS dispute last fall (and TWC’s ensuing loss of customers), the Aereo lawsuit, and the Comcast-TWC proposed merger were each caused at least indirectly by some of the ill-conceived and antiquated TV regulations we describe. Further, TV regulation is a “thicket of regulations,” as the Copyright Office has said, which benefits industry insiders at the expense of most everyone else.

We contend that overregulation of television resulted primarily because past FCCs, and Congress to a lesser extent, wanted to promote several social objectives through a nationwide system of local broadcasters:

1) Localism 2) Universal Service 3) Free (that is, ad-based) television; and 4) Competition

These objectives can’t be accomplished simultaneously without substantial regulatory mandates. Further, these social goals may even contradict each other in some respects.

For decades, public policies constrained TV competitors to accomplish those goals. We recommend instead a reliance on markets and consumer choice through comprehensive reform of television laws, including repeal of compulsory copyright laws, must-carry, retransmission consent, and media concentration rules.

At the very least, our historical review of TV regulations provides an illustrative case study of how regulations accumulate haphazardly over time, demand additional “correction,” and damage dynamic industries. Congress and the FCC focused on attaining particular competitive outcomes through industrial policy, unfortunately. Our paper provides support for market-based competition and regulations that put consumer choice at the forefront.

Last week, the Mercatus Center at George Mason University published the new book by Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good, which Eugene Volokh calls “A fascinating, highly readable, and original look at copyright[.]” Richard Epstein says that Bell’s book “makes a distinctive contribution to a field in which fundamental political theory too often takes a back seat to more overt utilitarian calculations.” Some key takeaways from the book:

• If copyright were really property, like a house or cell phone, most Americans would belong in jail. That nobody seriously thinks infringement should be fully enforced demonstrates that copyright is not property and that copyright policy is broken.
• Under the Founders’ Copyright, as set forth in the 1790 Copyright Act, works could be protected for a maximum of 28 years. Under present law, they can be extended to 120 years. The massive growth of intellectual privilege serves big corporate publishers to the detriment of individual authors and artist.
• By discriminating against unoriginal speech, copyright sharply limits our freedoms of expression. We should return to the wisdom of the Founders and regard copyrights as special privileges narrowly crafted to serve the common good.

This week, on Wednesday, May 7, at noon, the Cato Institute will hold a book forum featuring Bell, and comments by Christopher Newman, Assistant Professor, George Mason University School of Law. It’s going to be a terrific event and you should come. Please make sure to RSVP.

Aereo’s antenna system is frequently characterized perjoratively as a Rube Goldberg contraption, including in the Supreme Court oral arguments. Funny enough, Preston Padden, a veteran television executive, has characterized the legal system producing over-the-air broadcast television–Aereo’s chief legal opponents–precisely the same way. It’s also ironic that Aereo is in a fight for its life over alleged copyright violations since communications law diminishes the import of copyright law and makes copyright almost incomprehensible. Larry Downes calls the legal arguments for and against Aereo a “tangled mess.” David Post at the Volokh Conspiracy likewise concluded the situation is “pretty bizarre, when you think about it” after briefly exploring how copyright law interacts with communications law.

I agree, but Post actually understates how distorted the copyright law becomes when TV programs pass through a broadcaster’s towers, as opposed to a cable company’s headend. In particular, a broadcaster, which is mostly a passive transmitter of TV programs, gains more control over the programs than the copyright owners. It’s nearly impossible to separate the communications law distortions from the copyright issues, but the Aereo issue could be solved relatively painlessly by the FCC. It’s unfortunate copyright and television law intertwine like this because a ruling adverse to Aereo could potentially–and unnecessarily–upend copyright law.

This week I’ve seen many commentators, even Supreme Court justices, mischaracterize the state of television law when discussing the Aereo case. This is a very complex area and below is my attempt to lay out some of the deeper legal issues driving trends in the television industry that gave rise to the Aereo dispute. Crucially, the law is even more complex than most people realize, which benefits industry insiders and prevents sensible reforms.

The FCC, and Congress to a lesser extent, has gone to great lengths to protect broadcasters from competition from other television distributors, as the Copyright Office has said. There is nothing magical about free broadcast television. It’s simply another distribution platform that competes with several other TV platforms, including cable, satellite, IPTV (like AT&T U-Verse), and, increasingly, over-the-top streaming (like Netflix and Amazon Prime Instant Video).

Hundreds of channels and thousands of copyrighted programs are distributed by these non-broadcast distributors (mostly) through marketplace negotiations.

Strange things happen to copyrights when programs are delivered via the circuitous route 1) through a broadcast tower and 2) to a cable/satellite operator. Namely, copyright owners, by law, lose direct control over their intellectual property when local broadcasters transmit it. At that point, regulators, not copyright holders, determine the nature of bargaining and the prices paid.

Distribution of non-local broadcast programming

Right away, an oddity arises. Copyright treatment of local broadcasts differs from distant (non-local) broadcasts. Cable and satellite companies have never paid copyright royalties for signals from a local broadcast. (This is one reason the broadcast lawyer denied that Aereo is a cable company during Supreme Court oral arguments–Aereo merely transmits local broadcast signals.) But if a cable or satellite company retransmits signals from a non-local (“distant”) broadcaster, the company pays the Copyright Office for a copyright license. However, this license is not bargained for with the copyright holder; it is a compulsory license. Programmers are compelled to license their program and in return receive the price set by the panel of Copyright Office officials.

The Copyright Office has asked Congress for over 30 years to eliminate the compulsory license system for distant broadcasts. There are few major distant broadcasters carried by cable companies but the most popular is WGN, a Chicago broadcaster that is carried on many cable systems across the country. The programmers complain they’re underpaid and the Copyright Office has the impossible task of deciding a fair price for a compulsory copyright license. Alleged underpayment is partly why TBS, in 1998, converted from a distant broadcast network to a pure cable network, where TBS could bargain with cable and satellite companies directly.

Distribution of local broadcast programming

Yet things get even stranger when you examine how local broadcasts are treated. Copyright is, as best as I can tell, a nullity when a program is broadcast by a local broadcaster and then retransmitted by a cable company. Until 1992, no payments passed from cable companies to either the broadcaster or copyright holder of broadcast programs. Congress made the retransmission of locally-broadcasted programs royalty-free. Cable companies captured the free over-the-air signals and sold those channels along with cable channels to subscribers.

Why would broadcasters and programmers stand for this? They tolerated this for decades because the FCC requires broadcasts to be “free”–that is, funded by ads. Local broadcasters and programmers benefited from cable distribution because cable TV reaches more viewers that broadcasters can’t reach.

Then in 1992, as cable TV grew, Congress decided to rebalance the competitive scales. Congress created a new property right that ensured local broadcasters got paid by cable companies–the retransmission right. Congress did not require a copyright royalty payment. So cable (and later satellite) still didn’t pay copyright royalties for local broadcasts. The “retransmission right” is held by, not the copyright owner, but the owner of the broadcast tower. This is a bizarre situation where, as the Copyright Office says, Congress accords a “licensee of copyrighted works (broadcasters) greater proprietary rights than the owner of copyright.”

Welcome to the bizarro world of broadcast television that Aereo finds itself. On the bright side, perhaps the very public outcry over Aereo means the laws that permitted Aereo’s regulatory arbitrage will be scrutinized and rationalized. In the short term, I’m hoping the Supreme Court, as Downes mentions, punts the case to a lower court for more fact-finding. Aereo is a communications law case disguised as a copyright case. These issues really need to be before the FCC for a determination about what is a “cable operator” and an “MVPD.” A finding that Aereo is either one would end this copyright dispute.

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.

Those advocating retransmission consent changes are guilty of exaggerating the fact that retransmission consent fees have been on the increase and blackouts occasionally occur when content producers and pay-tv providers fail to reach agreement.  They are also at fault for attempting to  pass the blame.  DIRECTV dropped the Weather Channel in January, for example, rather than agree to pay “about a penny a subscriber” more than it had in the past.

A DIRECTV executive complained at a hearing in June that “between 2010 and 2015, DIRECTV’s retransmission consent costs will increase 600% per subscriber.”  As I and other have noted in the past, retransmission consent fees account for an extremely small share of pay-tv revenue.  Multichannel News has estimated that only two cents of the average dollar of cable revenue goes to retransmission consent.

According to SNL Kagan, retransmission-consent fees were expected to be about 1.2% of total video revenue in 2010, rising to 2% by 2014. at that rate, retrans currently makes up about 3% of total video expenses.

Among other things, DIRECTV recommended that Congress use the STELA reauthorization process to outlaw blackouts or permit pay-tv providers to deliver replacement distant broadcast signals during local blackouts.  In effect, DIRECTV wants to eliminate the bargaining power of content producers, and force them to offer their channels for retransmission at whatever price DIRECTV is willing to pay.

There is a need for regulatory reform in the video marketplace.  Unfortunately, proposals such as these do not advance that goal.  The government intervention DIRECTV is seeking would simply add to the problem by forcing local broadcasters to subsidize pay-tv providers instead of being allowed to recover the fair market value of their programming.  Broadcaster Marci Burdick was correct when she observed that regulation which unfairly siphons local broadcast revenue could have the unintended effect of reducing the “quality and diversity of broadcast programming, including local news, public affairs, severe weather, and emergency alerts, available both via [pay-tv providers] and free, over-the-air to all Americans.”

Broad regulatory reform of the video marketplace can and should be considered as part of the process House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) recently announced by which the committee will examine and update the Communications Act.

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.

Download

Related Links

• The Free Speech Foundations of CyberLaw, Chander, Lee
• The Electronic Silk Road: How the Web Binds the World Together in Commerce, Amazon
• Rules of the Digital Age: PW Talks with Anupam Chander, Publishers Weekly
• Securing Privacy in the Internet Age, Amazon

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?

In thinking about how to answer that question, I would remind myself of the constitutional purpose of copyright, which is “to promote the progress of science.” The purpose of copyright is about audience maximization, not profit maximization. Returns to creators are a means, not an end.

At this point, let me take a moment to head off any misinterpretations of that last paragraph and repeat, yet again, that piracy is wrong and illegal and inexcusable. I am not saying that piracy is a justifiable way to accomplish the constitutional purpose of copyright. What I am saying is that in deciding how many taxpayer dollars we want to expend on enforcement, and how many encumbrances we want to place on the property and liberty of third parties, we should ask ourselves: Will this further the progress of science? Or is it merely a subsidy to a particular industry?

As long as Hollywood has moves to make that could curb piracy, I don’t see how they can say to the rest of us that we’re not doing “enough.” Yes, the moves that Hollywood could make to curb piracy might reduce its profits (although there’s lots of experimentation going on and it’s yet to be seen what the ultimate equilibrium will be), but that fact tell us nothing about what obligations the rest of us have to prop up a particular business model.

The studios are in the terrible position of having to compete with piracy in a digital world, and I truly empathize with their plight. (I thank Ryan for noting that I, by pointing out this fact, am not celebrating it.) But given the fact of piracy, the question is, who should pay to address it? I don’t think it’s self-evident that it should be search engines or taxpayers.

As a final note, let me acknowledge that if Hollywood’s profits were to diminish, then we may end up with a different mix of films than we have today. We might get fewer big-budget action flicks like Avatar and more indie comedies like It’s a Disaster, which premiered online before its theatrical run. Again, it’s not self-evident that such an outcome would be good or bad. We’d have to ask ourselves whether such a new mix adequately promotes the progress of science or not. On that, for what it’s worth, here are some thoughts from Kevin Spacey.

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.

But 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. For every two people who stream a movie on Netflix instead of pirating it, another person may watch the same Netflix stream in lieu of renting the movie for $2.99 on Google Play, resulting in a net loss for the copyright holder. Deciding how to distribute an information good such as a hit new movie—and how much to charge for it—poses an extremely complex business challenge, especially in an ever-changing economic and technological environment, as Carl Shapiro and Hal Varian explain in their classic 1998 book, Information Rules: A Strategic Guide to the Network Economy.

Why are release windows still around?

Instead of giving Hollywood the benefit of the doubt by assuming the studios are acting rationally, let’s consider whether the industry has a plausible case for releasing movies online only after they’ve been in theaters for months. By way of background, in case you’ve lived under a rock for the past half-century, major studio movie releases typically don’t appear online or in video stores until 90 to 120 days after theatrical release, depending on the movie and distribution avenue. Preserving the box office exclusivity of newly released films encourages moviegoers to head to their local theater—where ticket prices hover around $8—instead of renting the movie on Blu-ray or online at a lower price.

This strategy, a form of price discrimination known as “versioning,” aims to expand the market for movies by appealing to a broader array of consumers. When executed properly, versioning increases studio profits, and probably makes society better off as well. Consider the book market: publishers often release a book in hardcover format at first, then a year later, in paperback at a much lower price. Were both versions released simultaneously, fewer hardcovers would sell, so the publisher would likely charge more for paperbacks. In the end, fewer consumers could afford to purchase and enjoy certain books.

Of course, staggering release dates isn’t the only way studios distinguish different versions of the same movie. In fact, the release window has a serious downside: it doesn’t accommodate people who, for various reasons, can’t easily get to a movie theater. For instance, nearly 11 million disabled Americans receive Social Security Disability Insurance benefits. Around 60 million reside in rural areas, some hundreds of miles from the nearest city. And 14 million U.S. households include one or more children under 6 years of age. For many of these people, traveling to a movie theater may be extremely difficult or costly. Simply getting out of the house for a couple hours may be burdensome, especially for parents with young kids at home. Or, like Mike Masnick, maybe you just hate the experience that movie theaters typically offer.

Fortunately, enjoying a film need not entail trekking to a movie theater. Thanks to television and broadband Internet, watching a movie at home is often as easy as pressing a few buttons on a remote control. This is great news for movie lovers who are disabled, have young kids at home, or live in remote areas. If you want to catch a brand new movie from the comfort of your own couch, however, you’re probably out of luck.

From Hollywood’s perspective, this presents a problem. If a family of four is willing to pay $30 to watch a brand new movie, whether they watch it at home or in a theater is inconsequential. Instead, Hollywood wants to capture as many high-value consumers as possible. The release window is merely an imperfect proxy for consumers’ marginal willingness to pay for movies. It also enables more flexible pricing—one ticket for every person—which is infeasible for digital rentals and purchases. But there’s nothing sacred about the release window. Back in the 1980s, “[t]he video window opened six months after the theatrical release and four months before the pay-per-view window,” according to Edward Jay Epstein, author of The Hollywood Economist. Later, as DVD sales began to rival and sometimes exceed box office receipts, the major studios gradually shortened their release windows, which are now often as short as three months.

Even the 90 day release window is showing signs of obsolescence. Recently, Hollywood has experimented on several occasions with letting consumers watch movies at home just weeks after their theatrical release, as I explained on these pages in 2008. In late 2011, for instance, Universal Studios sought to make Tower Heist available on-demand to 500,000 Comcast subscribers just 21 days after the film’s release. Despite the planned $60 rental fee, however, Universal called off the trial just weeks before Tower Heist‘s release after Cinemark, a major movie theater chain, threatened to boycott the film. If you’re still balking at the price tag—yes, a $60 rental is too expensive for all but the most profligate movie buffs—rest assured Hollywood isn’t giving up. As a recent article in The Convergence explains:

Two years ago, a number of major studios tested early release models based on varying windows. Disney rolled out an animated film, “Tangled,” in Portugal just a month and a half after its initial release. In the U.S., DirecTV served up several movies with a 60-day window for $30 a pop from Sony, Warner Bros., Universal Pictures and 20^th Century Fox.

A few months ago, The Wall Street Journal reported that Sony offered Django Unchained in South Korea for online and cable rental three weeks after its April 2013 premier in Korean theaters. And Disney offered two of its animated films, Wreck-it Ralph and Brave, for online rental in South Korea just a few weeks after their releases in 2012. Also this summer, in a more modest trial, Canadian theater company Cineplex joined with Warner Bros. to sell ticket purchasers a digital copy of Pacific Rim for an extra $19.99 to $24.99 atop the ticket price.

Will these experiments become the new norm over the next few years? Quite possibly. Although the theater owners who distribute Hollywood films will surely fight tooth and nail to preserve the release window, whether the theaters prevail depends on consumers themselves. If enough consumers are willing to pay for the privilege of watching new release movies on-demand or online, the studios won’t hesitate to meet this demand—theater owners be damned. But if the studios offer hit new films online at too low a price, some people who would otherwise be willing to spend $8 to see a movie in theaters will instead view it online for much less. This tradeoff, perhaps more than any other factor, explains the release window’s persistence.

If spending $20 or $30 on a digital rental of a new movie sounds unappealing, you’re not alone. Lots of people watch movies using free or inexpensive services such as broadcast television, Netflix, or Amazon Instant Video. There’s nothing wrong with that. But calling on Hollywood to offer popular new films on inexpensive streaming services is asking the studios to take a major pay cut for no good reason. Even if every last U.S. household signed up for Netflix, at $7.99 per month, the company would only bring in $11b annually. That’s a lot of cash, but consider that in 2012, the big six film studios generated $21.8b in revenues, according to Variety.

The upshot is that while cutting prices can be a great business strategy, especially in information markets where the marginal cost is near-zero, there’s little evidence that Hollywood is systematically over-pricing its movies. Some niche markets may be underserved—I for one wish VUDU’s HDX rentals offered 5.1 audio to PC users, in addition to Xbox 360 and PS3 owners—but all in all, Hollywood has made a ton of progress in the past few years when it comes to offering movies on all sorts of devices at a variety of price points.

Do release windows help combat piracy?

Above, I discussed how shorter release windows can help curb piracy, even if the net result is consumers spending less on movies. But giving consumers more movie options is a double-edged sword. Perhaps the big studios fear that if they begin releasing films online and in theaters simultaneously, the piracy problem may get worse, not better.

Are such concerns legitimate, or are Hollywood bigwigs making a mountain out of a molehill?

To answer this question, a visit to The Pirate Bay is in order. No, I won’t advise you to download a copyrighted movie. Rather, I’ll compare the search results for the last two movies I saw in theaters, both of which made the latest most-pirated list on PiracyData.org. First up is Pacific Rim, currently listed as the fourth most-pirated movie of the week. Released on July 12, 2013, Pacific Rim is available for digital rental and digital purchase, along with Blu-ray and DVD. The other film is Elysium, the sixth most-pirated movie of the week. Released on August 9, 2013, Elysium isn’t available from any authorized online outlets or on disc.

Searching The Pirate Bay for these two films reveals strikingly different results. See for yourself. Here are the top results for Pacific Rim, sorted by number of leeches:

And here are the top results for Elysium:

See the difference? Several Blu-ray rips of Pacific Rim are available, including several 1080p files and even a 12.9 GB 3D file (good luck getting it to play!). Note also that all of the top Pacific Rim torrents were uploaded during the past few weeks, even though the film came out back in July.

Elysium, on the other hand, is only available as an “HDRip,” “CAM,” “Screener,” “Webrip,” or “Telesync.” According to comments on The Pirate Bay, these files—many of which were uploaded in September or earlier—offer poor quality audio and video, while some files include “hardcoded subs” in a foreign language.

Why the discrepancy between Pacific Rim and Elysium? Because the former is available online and on disc, while the latter has yet to be released in either format. Acquiring a digital copy of a movie, it turns out, is much more cumbersome if the film is still only in theaters. For brand new movies, pirates typically distribute so-called “cams”—whereby a person simply records a movie in a theater with a handheld or tripod-mounted video camera—or “telesyncs,” which are similar to cams but include a direct connection to the sound source. Also sometimes uploaded are “screeners,” a pre-release DVD of a film usually sent to critics and award voters.

But when a hit new movie is released online and on Blu-ray, pristine digital copies of the film soon begin appearing on The Pirate Bay and similar outlets. Despite studios’ ongoing efforts to protect access to their works using digital rights management (DRM), nearly every major movie format has been cracked in short order. Blu-ray’s BD+ DRM, for instance, was cracked not long after its 2007 release by the Antiguan company SlySoft. To this day, newly released Hollywood films invariably end up online almost immediately after their release window ends—if not a few days sooner. Videophiles can even download untouched 30GB MPEG-2 Transport Stream files that are bit-for-bit identical to the Blu-ray version of the film.

If we assume pirates are more or less rational, it follows that they care about video and audio quality, much like their law-abiding counterparts. The easier it is for pirates to acquire a high-quality digital file of a new movie using Bittorrent, therefore, the less likely pirates are to bite the bullet and buy a ticket at the box office for a much awaited film. Although some pirates may be unwilling to pay to see a movie in a theater at any price, other pirates are surely more flexible when it comes to deciding how to enjoy a new movie. For consumers of the latter type, waiting three or four months to enjoy a new movie in a high-quality format may be unbearable for certain films.

So long as new DRM technologies are cracked soon after their release, many copyright owners will think twice before making high-value content available in a digital format. Unfortunately for law-abiding consumers, this understandable aversion to digital distribution results in fewer lawful venues for enjoying content online. Despite Congress’s efforts to bar the circumvention of technological measures that protect copyrighted works, DRM remains fallible—and the release window persists.

Don’t blame the victim-blamer

Some critics have accused PiracyData.org’s creators of “blaming the victim.” For instance, Larry Spiwak of the Phoenix Center writes that the site’s “mentality is nothing new to the digital piracy debate and it entirely misses the point: intellectual property is property” (his emphasis). Jeff Eisenach makes a similar point over on AEI’s TechPolicyDaily.com.

One need not loathe copyrights, however, to care about how lawful markets for expressive works affect unlawful markets for such works. I’m strongly against assault and robbery—and support the criminalization of both acts—but I still care to know how to avoid being mugged or gunned down. If a journalist pens an article about neighborhoods to shun late at night if you’re alone and unarmed, it doesn’t mean she is pro-robbery or pro-violence. The law isn’t our only fount of protection from would-be aggressors. If we pretend otherwise by ignoring self-help options—or, worse, by trying to craft a government that can safeguard us against all ills—we’re kidding ourselves and screwing our posterity.

To be sure, I think copyright infringement is a problem. Brito agrees with me. And, as I’ve argued here, here, here, and here, federal law probably should do more to address piracy. But this proposition is not self-evident, however much its advocates wish it were so. Indeed, if Hollywood could double its profits while cutting piracy in half by revising its business model over the coming year, that’s a extremely good reason for Congress to hold off on anti-piracy legislation. If, however, Hollywood is doing its damnedest to curb infringement while preserving economic returns that are commensurate to the risks entailed in movie production, then it’s up to lawmakers to determine whether and how to better secure copyrights in a manner that serves human flourishing. Insofar as PiracyData.org can help inform this debate, may a thousand similar websites bloom.

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.

Second, I’m concerned that “qualifying search queries” include generic terms like “watch movies online” and title-based terms like “Dark Knight.” That means that if you searched simply for the title of any movie or TV show, then the clock started ticking and, if you hit an infringing URL within 20 minutes, you’re path to that URL was deemed influenced by the search engine. I don’t know about most users, but I probably visit a search engine more than once every 20 minutes. If one is a film and TV enthusiast, I wonder if the influence shot clock wouldn’t be constantly ticking.

It’s therefore not surprising 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 points out, this “indicat[es] that these consumers 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? 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.

Finally, the report looks at whether Google’s change to its search algorithm last summer affected referrals to infringing content. The change penalizes a site in Google’s search results based on the number of copyright removal notices received for that site. According to the report, the new algorithm did not really change the percent of direct referrals from Google to sites in Google’s own transparency report—remaining at around 9%.

That’s very interesting, but what might be more interesting than the percent of direct referrals is the total number of direct referrals. After all, the percent of referrals could remain at 10%, but if the total traffic to those sites decreases as a result of the algorithmic change, that would be a success. Indeed, even if traffic to those sites increases, but the share remains the same, it could also be considered a success given the potential counterfactual situation in which but for the change the Google’s share of referrals would have been bigger.

Also, as Google explained when it announced the algorithmic change, penalized sites would appear lower than they otherwise would in search results, not be blocked altogether. So it may well be the case that a search for something like “dark knight free download divx pirate bay” will still return links to infringing content high in the search results even though they have been algorithmically demoted because there is no other content that beats it even with the demotion. I don’t think anyone can seriously expect Google to display links to Amazon and Netflix and Warner Bros. as the top results for that search.

So, what might be more interesting is to figure out the effect that the algorithmic change had not on the share of referral traffic broadly, but on direct referrals from search results for generic and title-based searches made by “consumers [that] did not display an intention of viewing content illegally.” I wonder if the algorithmic change has not had an impact there.

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?

Although Congress has struggled mightily with these questions, business leaders from a variety of sectors have worked together to devise several approaches to the problem of copyright infringement that go above and beyond the Copyright Act. Perhaps most notably, in February 2013, a coalition of five major ISPs and several trade associations representing filmmakers and artists announced the launch of the Copyright Alert System (“CAS”). Administered by the Center for Copyright Information, the CAS aims to educate users about copyright law—and deter them from violating it—by delivering Copyright Alert notices to ISP subscribers found to be sharing infringing files on peer-to-peer networks.

It’s too early to render a verdict on the CAS’s effectiveness, but as data accumulates in coming months and years, researchers will surely examine how the system has impacted user behavior. Similar approaches to infringement by ISP subscribers have been tried in other countries such as France—albeit on a mandatory, not voluntary, basis—and several studies have found that these so-called “graduated response” systems have indeed reduced infringement in nations where they’ve been implemented. But other studies have reached the opposite conclusion, so more research is needed in this area. Whether or not CAS succeeds, however, experimentation involving novel approaches to copyright protection is crucial for the future of creative expression, as is experimentation among business models to monetize content.

Speaking of voluntary approaches to copyright protection, Google last week unveiled a report describing its anti-piracy efforts. As Google’s Fred von Lohmann explained:

[W]e are releasing a report, “How Google Fights Piracy,” bringing together in one place an overview of the programs, policies, and technologies we have put in place to combat piracy online.

The report discusses how Google penalizes websites that receive a high percentage of DMCA takedown notices in Google’s search results, hopefully thereby directing users toward legitimate sources of content. It explains the “Content ID” system pioneered by YouTube, which enables rights holders to identify potentially infringing videos posted to the site, and gives copyright owners the choice to monetize such videos in lieu of removing them altogether. And the report points out that in 2012, Google voluntarily disabled ad service to 46,000 websites dedicated to infringement. Check out the full report for much more information on these efforts and many others that Google has taken to better secure copyrights—and for another perspective, check out a MPAA-commissioned study released today critiquing the role that Internet search engines play in helping users find infringing websites.

After today’s hearing, I’ll have more thoughts on the state of voluntary cooperation to protect copyrights, and on the debate about whether file lockers and search engines ought to do more to combat infringement.

No doubt I won’t be the only one to point out how funny it is that today’s New York Times front page exposé on the excesses of the Renewable Fuel Standard puts the blame on Wall Street firms trading in the market for ethanol credits. But I also want to make a comparison to intellectual property.

As the headline puts it, “Wall St. Exploits Ethanol Credits, and Prices Spike,” Yet ethanol credits are a thing that affect the price of gasoline only because the government created them out of thin air and mandated their use. Having created a new commodity–and a mandatory one for many refiners–it’s no surprise speculators entered the market. Yet this is how the NYT describes it:

The banks say they have far less influence in the market than others are suggesting, and are doing nothing wrong. But the activities, while legal, could have consequences for consumers.

See that? It’s the perfectly legal activities of the banks that will have consequences for consumers. I’d say it’s the entire program itself, created out of thin air by the government, that allows for these activities in the first place.

Because Congress and the EPA didn’t accurately predict future gasoline consumption (shocker that) they set the amount of ethanol that refiners must blend into gasoline too high. Refiners are on the hook to use more ethanol than possible, which forces them to buy ethanol credits instead. So of course commodity speculators are going to play in this made-up market, but it’s not the players we should be hating, it’s the game.

And for the record, I don’t mean to excuse the banks. I don’t know enough about this issue, but it wouldn’t surprise me if the banks had a hand in getting the government to create this market. If they did, then that’s par for the crony capitalist course.

The analogy to intellectual property, although imperfect, should be clear. Ethanol credits, like patents and copyrights, are property. Unlike traditional forms of property (say, in land or chattels), they are property rights created by statute out of thin air in order to incentivize creation of a public good. More renewable fuels in the case of ethanol credits, more creative works and inventions in the case of IP.

Creating new property rights can be a very healthy exercise and it’s generally preferable to government production of the public good. As the ethanol credits mess show us, though, getting right the design of the new property right is crucial, yet something regulators are bound to screw up for all the reasons that Hayek and Buchanan and Tullock pointed out.

As I mentioned, the analogy is not perfect. Government requires that refiners buy ethanol credits, while there’s no such law about IP. And yet, if you think about software and process patents, it plausible to make a case that there might as well be a requirement. Given how broadly these patents are interpreted, you might find that you have to pay tribute to a patent holder to be in a particular line of business. This is why we have patent trolls.

It’s funny, then, that diagnosing the ethanol mess the NYT falls into the same trap many do on patents. Namely that they confuse a symptom (trolls) for the disease (the scope of software patents). “[B]y allowing anyone to trade, including those with no real interest in energy, the E.P.A. encouraged speculation, the critics say,” the NYT tells us. But again, the problem is not the players, but the game.

So despite the fact that some find it surprising, it’s perfectly logical and ideologically consistent to be a strong defender of property rights, yet be a proponent of scrapping statutory property rights regimes that don’t work. If you are a conservative or libertarian who would feel some sympathy for abolishing the Renewable Fuels Standard, then you have some insight into why so many of us are sympathetic to abolishing some kinds of patents.

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.

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.

What’s the “fair” price for CBS? The answer lies in the marketplace, which empowers firms to “discover” prices through negotiation. Both CBS and TWC have strong incentives to end this dispute—their shareholders won’t put up with this dispute forever. CBS can’t be happy about losing a reported $400,000 each day TWC subscribers can’t tune in, while TWC is surely losing customers to competing providers—including Verizon, which is aggressively wooing New Yorkers with its CBS-equipped FiOS service.

If the FCC intervenes, it must decide how much TWC should pay CBS. Regulators may be able to read charts, but they can’t read minds. How, then, can the FCC divine how much value the two companies and their customers place on these competing priorities? Given how Washington works, the feds will probably bend to whichever side hires the best-connected lobbyists and influence peddlers.

As long as networks are free to bargain with video providers, television blackouts will happen—but not often. According to economist Jeffrey Eisenach, blackouts disrupt less than 1 in 10,000 viewing hours for consumers. Disputes over fees rarely interrupt programming because they infuriate viewers, ultimately harming networks and cable companies alike. But this hardly means blackouts should be illegal. Imagine a labor union that couldn’t strike—no rational private-sector employer would take its wage demands seriously.

Why should cable companies pay for broadcast networks in the first place, given that broadcasters transmit their networks over the air for free? Because consumers prefer the convenience and reliability of network channels distributed by cable, and in order to satisfy this preference cable companies need access to material that does not belong to them. This access requires negotiating with the networks.

The alternative isn’t forcing networks to give their content away for free, but rather for cable subscribers to pay slightly lower bills but lose broadcast channels which they could still watch via antenna, just like everyone else. If customers preferred this, cable companies would happily stop paying broadcasters. As it is, cable consumers are paying more for convenience by choice, not unlike someone who goes to a weekend movie for $12 when they could go on a Tuesday night for $7.

If the government truly wants to help television viewers, Congress should nix the unfair and anti-competitive legal perks that broadcast affiliates currently enjoy, such as the federal regulation requiring cable companies to buy broadcast content only from the local affiliates in each city. In other words, a cable company can’t let New Yorkers watch primetime shows provided by any CBS station in the nation other than the New York CBS affiliate.

CBS and Time Warner Cable will reach a deal soon enough—they can’t afford not to. Meanwhile, if you’re sticking with TWC, you can still catch your CBS favorites over the air or on Internet platforms like Netflix, Amazon, and Hulu. So long as government stays out of the vibrant entertainment market, there will always be alternatives.

For more on this subject, see the recent essays by fellow Liberators Adam Thierer and Jerry Brito.

There are few things more likely to get constituents to call their representative than TV programming blackouts, and the increase in broadcasting disruptions arising from licensing disputes in recent years means Congress may be forced to once again fix television and copyright laws. As Jerry Brito explains at Reason, the current standoff between CBS and Time Warner Cable is the result of bad regulations, which contribute to more frequent broadcaster blackouts. While each type of TV distributor (cable, satellite, broadcasters, telcos) is both disadvantaged and advantaged through regulation, broadcasters are particularly favored. As the US Copyright Office has said, the rule at issue in CBS-TWC is “part of a thicket of communications law requirements aimed at protecting and supporting the broadcast industry.”

But as we approach a damaging tipping point of rising programming costs and blackouts, Congress’ potential rescuer–Aereo–appears on the horizon, possibly buying more time before a major regulatory rewrite. Aereo, for the uninitiated, is a small online company that sets up tiny antennas in certain cities to capture broadcast television station signals–like CBS, NBC, ABC, Fox, the CW, and Univision–and streams those signals online to paying customers, who can watch live or record the local signals captured by their own “rented” Aereo antenna. Broadcasters hate this because the service deprives them of lucrative retransmission fees and unsuccessfully sued to get Aereo to cease operations.

Let’s back up. Broadcast television is–as my colleague Tom Hazlett says–the “killer app of 1952.” It’s an old technology featuring a few dozen channels that hasn’t fared well with the rise of subscription television offering hundreds of channels–Comcast, Dish, U-Verse, and others. Only about 10% to 15% of households rely on rabbit ears antennas to receive free broadcast TV, while the rest have a subscription.

I’m doubtful Congress will step in and make online distributors like Aereo pay for retransmission. While the laws tilt in broadcasters’ favor, Aereo gives cable and satellite companies additional leverage since–if they have a protracted fight with a broadcaster–they can direct their customers to Aereo. TWC is, in fact, doing this in its current dispute with CBS. Since customers have an online option, no one needs to miss NFL preseason football or the latest How I Met Your Mother. Aereo is not an ideal solution, but it gives a cable or satellite provider another bargaining weapon.

For several reasons, I think Congress may allow Aereo to proceed. First, with the variety of print, online, and television options consumers face today, broadcast programming is no longer a sacred cow. Congress, the FCC, and the tech and telecom industries are anxious to get more broadcasters off the air to make room for spectrum-hungry mobile technologies. That is the precise purpose of the pending incentive auctions. Broadcasters are a powerful group with compelling arguments for the status quo–they provide high-demand local news, sports, and weather, for instance–but many people are beginning to realistically imagine life without them.

Second, the primary political justification for protecting local broadcasters–local ownership and diversity–has “virtually vanished” because of industry consolidation in the 1990s and 2000s, as Harold Feld from Public Knowledge notes. It was easier in the past to defend these regulatory carve-outs for broadcasters when locally-owned operations were the beneficiaries, but today many broadcasters are owned by large media companies.

Finally, in the dynamic video marketplace, Congress may be hesitant to impose more regulations on new video technologies. Protecting a 1950s technology by enforcing 1990s laws on today’s Internet services makes little sense. Already, television laws passed in the 1990s look terribly dated and give Congress and the FCC headaches. Rewriting television and copyright laws is a huge task involving many powerful industries seeking protection from disruptive law changes. With the House and Senate controlled by different parties, this makes a grand compromise even less likely.

So Aereo and other antenna rental services represent some relief for regulators since it gives cable and satellite providers a little more leverage. The service is only in a few cities but is quickly expanding. If consumers adopt the service during future disputes, a semblance of equilibrium may return when subscription services bargain with broadcasters. For that reason, Congress may want to sit back and see how it plays out.

Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.

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Related Links

• Sherwin Siy, Public Knowledge
• What the DMCA cell phone unlock ban means to you, Reardon
• Why The Library Of Congress Has A Lock On Your Phone, Henn

Patrick Ruffini, political strategist, author, and President of Engage, a digital agency in Washington, DC, discusses his latest book with coauthors David Segal and David Moon: Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet. Ruffini covers the history behind SOPA, its implications for Internet freedom, the “Internet blackout” in January of 2012, and how the threat of SOPA united activists, technology companies, and the broader Internet community.

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Related Links

• Patrick Ruffini, Engage
• Patrick Ruffini, Huffington Post
• Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists and Suits Teamed Up to Defeat SOPA and Save the Internet, Goodreads

Richard Brandt, technology journalist and author, discusses his new book, One Click: Jeff Bezos and the Rise of Amazon.Com. Brandt discusses Bezos’ entrepreneurial drive, his business philosophy, and how he’s grown Amazon to become the biggest retailer in the world. This episode also covers the biggest mistake Bezos ever made, how Amazon uses patent laws to its advantage, whether Amazon will soon become a publishing house, Bezos’ idea for privately-funded space exploration and his plan to revolutionize technology with quantum computing.

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Related Links

• One Click: Jeff Bezos and the Rise of Amazon.com, Brandt
• History of Google/About Google, Brandt
• Five minutes with Richard Brandt, Author of One Click, Ennyman

Gina Keating, author of Netflixed: The Epic Battle for America’s Eyeballs, discusses the startup of Netflix and their competition with Blockbuster.

Keating begins with the history of the company and their innovative improvements to the movie rental experience. She discusses their use of new technology and marketing strategies in DVD rental, which inspired Blockbuster to adapt to the changing market.

Keating goes on to describe Netflix’s transition to internet streaming and Blockbuster’s attempts to retain their market share.

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Related Links

• Netflixed: The Epic Battle for America’s Eyeballs, Keating
• Gina Keating’s New Book about the Rise of Netflix, Babayan
• ‘Netflixed,’ Book by Gina Keating, Describes CEO Reed Hastings As a Nasty Boss’ Liedtke

Earlier this year, Ryan Radia and I spilled a lot of ink on these pages critiquing the various “cell phone unlocking” bills that were introduced in reaction to a successful White House petition. Our assessment of these bills was that they ranged from timid to unhelpful. Their biggest vice was that they were generally band-aids and temporary fixes aimed solely at cell phones and not the underlying problem of the DMCA’s anti-circumvention provision.

Today, I’m happy to see Rep. Zoe Lofgren introduced a bill that would not only fix cell phone unlocking, but also goes a long way in addressing the DMCA Section 1201’s fundamental problems. Quite simply, the Unlocking Technology Act of 2013 makes the DMCA’s anti-circumvention provisions applicable only in cases where the person circumvents a digital lock in order to infringe copyright. So, ripping a DVD in order to distribute a film without permission on BitTorrent would still be illegal, but ripping the same DVD in order to watch the film on your iPad would be OK. This is good sense and good policy.

The bill also would allow the manufacture, sale, and import of anti-circumvention tools now prohibited under DMCA 1201. Sounds nefarious, but in reality what this means is that, for example, Linux users may for the first time get a legal way to play DVDs on their computers. And making tools that help the blind read ebooks won’t get you in trouble with the FBI.

Finally, the bill requires NTIA to conduct a study and publish a report looking at whether the economic impact of the DMCA’s anti-circumvention provisions, and to look at whether Section 1201 should be further amended or even repealed. Yes folks, this bill uses the word “repeal” in its text.

Congrats to Rep. Lofgren and her bi-partisan co-sponsors, Reps. Massie, Eshoo, and Polis, for showing that common sense still has a shot on the Hill.

Over at Freedom to Tinker, Steve Schultze has a response to my Reason article about Craigslist suing its competitors. Steve expresses some surprise that I would suggest that we might want to recognize a new property right since I have been so critical of the excesses of our current IP regime. Let me take a stab at reconciling that seeming paradox.

First, I should say I’m sympathetic to Steve’s position, which he shares with many others, and which may well be right. I wrote the Reason article more than anything to provide some balance to what I saw as a knee-jerk reaction in the blogosphere to the Craigslist ruling. I really didn’t see anyone giving Craigslist’s claims a fair shake (probably because the company is acting hypocritically given the public profile they have cultivated). That’s why in the article I’m ambivalent about whether Craigslist should have any remedy, and why I don’t make the case that trespass to chattels is the right approach. The point is that neither am I convinced that it’s clearly the wrong approach, or that Craigslist should clearly not be waging this suit.

That said, let me suggest that my thinking on this is not at odds with my thinking on copyright. Steve chides me for saying that maybe there’s something to Craigslist’s claims because what its competitors are doing doesn’t “sit well.” He says that “the notion that something doesn’t ‘sit well’ is not necessarily a good indicator that one can or should prevail in legal action,” and he’s right, which is why I don’t make that claim in the article. He goes on to admit that “to be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn’t seem right.” And that was my point. The fact that what Craigslist’s competitors are doing doesn’t sit well, I suggest, should give us a hint that this isn’t as open-and-shut a case as some have made it out to be, and that perhaps we should take a closer look.

I’m glad Steve brings up the common law. One of the central critiques I have made about copyright as a property right is that it did not develop at common law, and is instead a creature of statute. The fact that copyright is created by politicians guessing about the future (and influenced by special interests), rather than courts deciding actual cases and controversies, is what in large part leads to its excesses. I am much less skeptical of property rights that emerge at common law over time after an evolutionary process of trial and error, and as Steve points out, this process usually begins when a court is presented with a novel question that doesn’t “sit well.”

On to nitpicks about copyright. Steve says that “there is a bit of confusion around the copyright claims” that he wants to clear up and notes that, “The court held that Craigslist unambiguously does not hold copyright in user-created postings, except for those three ill-fated weeks last summer when they instituted that horrible terms of service.” That is a confusing statement in itself because at face value it implies that Craigslist does indeed have copyright over the postings created during the couple of weeks it required users to click through what Craigslist claims is a notice that assigns to it an exclusive license. Of course, as Steve knows, the court’s ruling was on a pretrial motion and whether Craigslist has copyright in that small set of listings has not yet been determined. And if I had to bet, I’d bet the click-thru won’t qualify as an assignment of an exclusive license.

He goes on to say that “Jerry’s claim … that no copyright exists in these posts whatsoever, seems weak.” Well, again, I made no such claim. The only thing I said on this was that “a site like PadMapper only copies facts about a listing (i.e. 3 bedrooms, 800 sq. ft., $2,000 a month, etc.), and mere facts are not subject to copyright.” I wasn’t suggesting that the listings in questions were Feist-style facts that could not be copyrighted, but that PadMapper is not copying the listings wholesale, but only taking mere facts, which would be unprotected given the merger doctrine. Steve seems to miss that distinction.

Even if I had said that the listings were not subject to copyright, Steve’s evidence that such a claim is weak is, well, weak. He points to the court’s ruling, which finds that the listings probably are copyrightable. Yet as Steve notes, the facts in the case are read in the light most favorable to the non-moving party, which is Craigslist since this is a motion to dismiss. So I’m not sure how a court looking at the issue in a light favorable to Craigslist and finding that Craigslist has adequately alleged sufficient facts to proceed is much evidence against the legal claim that the listings aren’t copyrightable.

Anyhow, after clarifying “confusions around the copyright claims” that I did not introduce, Steve takes me to task for “argu[ing] that maybe this is the right case to test out some novel approaches to applying physical-world torts to online things that feel kinda like property.” In this he’s probably right; this is likely the wrong case. It is “a messy fact pattern,” as Steve says. I think that’s true in part because Craigslist has not been adding new features to its site and has seemingly been resting on its laurels since the late 90s. A better case would be one that involved, say, a service that took Match.com and OKCupid listings without permission. It would be a much more clear-cut question if we had a plaintiff that was working hard to attract users’ listings only to see them taken without permission, as 3taps says in its white papers should be allowed. Alas, though, this is the case we have.

Steve then goes on to the heart of the matter: my suggestion that it’s not clear that there shouldn’t be a property right here. Steve first says that “moving law in this direction is bad policy,” without providing any support for that assertion except to say that “Jerry has written extensively about the problems with propertization creep, so I don’t know why he would think that this makes sense.” I’ve already explained the difference between property rights that emerge at common law, and the creep we see from statutory property schemes, so I won’t repeat myself. The bottom line is that sometimes property makes sense, and sometimes it doesn’t. The question is, in a particular case, how do we increase human welfare? With a property right, or with a commons? As I said before, Steve and other commentators may be right that a commons is the way to go in this case, but it’s not as obvious to me as it seemingly is to them. I’d love to see the case made explicitly.

Steve goes on:

Jerry also turns to the economics of network effects to support his “it doesn’t feel right” hypothesis. As his argument goes, Craigslist built the network effects that it now enjoys, so competitors should have to do the same. I suppose that this satisfies a visceral sense of fairness, but it doesn’t say much about what is optimal for the market and for innovation.

I’d argue it says far more than Steve has said. As I explain in chapter one of Copyright Unbalanced (the subtitle of which Steve oh so cleverly zings in his concluding line) we do want to see new property rights emerge when it’s worthwhile to internalize (at least some of) an existing externality. In this case the externality is the network effect that listing platforms like Craigslist provide. What I’m suggesting is that it’s not obvious that we won’t get better platforms and more innovation by having competing closed platforms (Match.com vs. OKCupid) rather than one open one. Commentators like Steve, however, seem happy to forgo the analysis, dismissing such thinking as “Paleo-Schumpeterian,” and jumping right to the conclusion that any new propertization is bad. I’ve explained my limiting principle; I’d love to hear theirs.

Finally, so much of the reaction to Craigslist this past week was predicated on the company’s lack of innovation. As Steve points out,

Once you have a network effect in a market, your incentives to innovate decrease because of lock-in. Others, however, are strongly motivated to try to break into that market. Padmapper and others innovated—in a way that is no less “true” than Craigslist’s original innovation. Craigslist saw the value of that innovation and even tried to imitate it by creating its own mapping tool (arguably innovation in and of itself).

I don’t get it. If Craiglist is asleep at the switch and as un-innovative as Steve says it is, and if competitors are innovating, then why should we worry if it does have a property right? Won’t Craigslist eventually get disrupted and have the network effect wrested away from it by a competitor that entices aways its users? It’s how Facebook beat MySpace, and how MySpace beat Friendster. Lock-in didn’t stop them. And isn’t at least some of the incentive that draws those potential disruptors the chance of one day wearing the crown?

I’m not saying this is the right answer, but I don’t see anyone making a good case why a property model is obviously wrong, and a commons is obviously better.

Over at Reason I take a look at the recent controversy around Craigslist suing some smaller competitors who have been using its listings data without permission. While I agree with most commentators that neither copyright nor CFAA claims make sense in this case, I depart from what seems to be the conventional thinking in arguing that it’s not so clear that Craigslist should have no remedy:

[I]t’s pretty easy to see why Craigslist should care that others are building on top of and extending its service. What makes the company so valuable is its strong network effect. People go to Craigslist because that’s where the people are. If it loses that, it loses its business.

PadMapper aggregates and presents listings not just from Craigslist, but from other apartment listing sites as well, including Apartments.com and Rent.com. This is great for users because they only need go to one site to browse all the listings across multiple databases. It’s bad for Craigslist, however, because it makes it less of a focal site. Such aggregators make it less important that an apartment be listed at Craigslist specifically as long as it is in the aggregated list.

PadMapper also offers listings of its own listings through its PadLister service. This means that PadMapper relies on the network effects that Craigslist has developed in order to draw in an audience, and then promotes and sells its own listing service to that audience. While that business model is certainly innovative, and may not violate copyright, it doesn’t sit well, either.

Craigslist disrupted the newspaper industry by decimating traditional classifieds. It did this by offering a better alternative to its competitors that attracted consumers away from newspapers. Craigslist didn’t copy newspaper ads to jumpstart its operation, just as Facebook didn’t jumpstart its network by copying over MySpace accounts. That’s true innovation: taking command of the network effect by offering a superior product. So shouldn’t we expect the same from new entrants in the classifieds space?

Check out the whole thing here.