More And More Research Showing That The Assumptions Underpinning Copyright Law Are Fundamentally Wrong

from the empirical-research dept

For years, we've been arguing against faith-based policy making when it comes to intellectual property. This is the belief that "if some intellectual property is good, more must be better," when it's never been established that the fundamental principle is true in the first place. Thankfully, there's been a renewed focus on empirical studies looking at the impact of intellectual property law, and nearly all of them seem to suggest the very fundamental assumptions that underpin copyright law aren't actually true. That link is from the Columbia Journalism Review (which discloses that the MPAA funds their coverage of IP issues, though I imagine the MPAA is less than pleased with this article), noting a renewed interest in empirical studies on the impact of copyright law and the fact that many of those studies show that the traditional claims about copyright law don't actually appear to be true.
The takeaway, for Buccafusco and Sprigman, is that markets for creative work are not nearly as efficient as IP law assumes—and that the argument that more protection is needed to ensure innovation might not be quite right. “The work I do with Chris suggests that we don’t know as much about IP as we think we do,” says Sprigman. “It’s been a faith-based policy for a long time. A lot of people in my field are trying to uncover what IP laws actually do and what they don’t.”
Some of the research covered in the article, such as work done by Christopher Buccafusco and Christopher Sprigman, we've covered before. But it also highlights how this is a growing area of research, with a few new academic centers really devoted to the subject. This is a very good thing. For years I've pointed out that the lack of empirical research on the impact of copyright law (and changes to copyright law) was a real disaster for anyone wishing to change copyright policy. Having robust research that proves the actual impact of copyright law should be a good thing. One would imagine that it should be supported across the board, even by legacy entertainment industry players who often are copyright maximalists. After all, if their theories prove wrong and they might be better off with weaker copyright law, wouldn't they want to know that?


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  1.  
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    Ninja (profile), Sep 24th, 2013 @ 11:22am

    After all, if their theories prove wrong and they might be better off with weaker copyright law, wouldn't they want to know that?

    Hmmm... No. They'll just keep shooting themselves in the foot. Maybe they are some sort of masochists, who knows?

     

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  2.  
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    S. T. Stone, Sep 24th, 2013 @ 12:13pm

    Man, when OOTB sees this, we gon’ have some fun.

    I’ll get the popcorn and the pitchforks!

     

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  3.  
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    Anonymous Coward, Sep 24th, 2013 @ 12:14pm

    Indeed, why would they want to admit that they are wrong and in order for weaker copyright laws to be forthcoming which will probably give them less money in the end when they can keep on stating that that they are right (even if they are completely wrong) to push for harsher copyright law in order to get more money out of it.

    Would you admit to being wrong and receive less moeny or keep stating that you are right (even if you are wrong) just to keep more money.

     

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  4. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 24th, 2013 @ 12:27pm

    HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    "set up a series of experiments that they thought could help them understand how creators value their work. In one experiment, they had one group of subjects write three-line haikus, to be entered in a contest with a prize of $50."

    Okay, if that's what ya call "empirical research", GO WITH IT. To everyone objective, it's a LAUGH.

    I'm lazy right now, so I'll just quote:

    "Empirical research doesn’t always go against industry assertions. Empirical research doesn’t always go against industry assertions. Independent empirical research has shown, for instance, that the pharmaceutical industry really does need patents to keep churning out new drugs. And the best empirical work out there has confirmed the recording industry’s worry that illegal downloading has hurt music sales—even if the drop is maybe not quite as dramatic as industry advocates sometimes make it out to be.

    YET AGAIN, this just makes me wonder whether Mike actually READS his sources, 'cause they so frequently REFUTE his notions!

     

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  5. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 24th, 2013 @ 12:28pm

    Re: HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    WHOOPS. Take out a sentence, up there. Malquoted, rectify.

     

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  6.  
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    Edward Teach, Sep 24th, 2013 @ 12:38pm

    Re: Bad Assumption

    What if they're right and wrong: admit to being wrong, but get more money? If the market expands, there's more price points to sell a work of "intellectual Property" at. We see this with books today: hardcover max price, trade paperback somewhat less, paperback a lot less, cutout rack a whole lot less. Also, a market for used goods (games, cars, etc) often makes the new good sellable at a higher price.

    In the end, I don't think that "intellectual property" is entirely about money. A huge element of control-freakery is involved, both from the "content creators" (a.k.a. "rightsholders") and from the government. The current content creators have essentially defined US culture for a hundred years or so. That's going to be hard to give up. The government wants a good, First-Amendement-avoiding way to stifle some speech. Hey, "Intellectual Property" looks like it can do that!

     

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  7.  
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    Anonymous Coward, Sep 24th, 2013 @ 12:40pm

    Sometimes industry likes long copyrights without intending to make money off them

    I think the reason why so many Big IP industries strive for longer copyright protections is not because they want to get money from abandoned properties, but because they know very well that abandoned properties compete against newer, and more expensive offerings.

    Netflix is a great example of this -- one month of Netflix costs less than a single theater admission, and if you're not too snobbish about new-ness or awesome-ness, can easily provide 100 times more entertainment per dollar. So there is obvious incentive to suppress Netflix -- it allows people like me to go to the theater less often.

     

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  8.  
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    Jay (profile), Sep 24th, 2013 @ 12:57pm

    Re: Sometimes industry likes long copyrights without intending to make money off them

    While this is true, it makes the pie smaller.

    Just recently, it dawned on me how small I thought Hollywood was... A new DVD cost $20. An old DVD is $5. But a new game costs $60.

    So for a little more, I can have fun with a game for a lot longer and a much more complete story than what movies could offer me for 1/3 the price.

    I can actually find good movies online without going to streaming sites that appeal to me (I'm big on Korean stuff now.) without even beginning to buy new movies that I'll watch once then never again.

    Violet was a waste of time and the old movies that I remember from the 90s are pretty much out of my existence.

    Then there's anime...

    The point here is that I have a lot of entertainment that takes up my time and I have a LOT of choices. Those abandoned properties could work if they were available for free that allowed them to make money.

    Their old business model of market manipulation isn't going to work because even then I don't HAVE to infringe on their copyright to watch good stuff. I just move on. I just wish they could understand that and move on with providing better stuff than what they're doing now.

     

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  9.  
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    pixelpusher220 (profile), Sep 24th, 2013 @ 1:31pm

    Re: HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    Yep you are lazy. Mike has consistently said the 'music' industry is doing great but the 'recorded music/sales' industry isn't doing so well. This backs that up pretty directly.

    Selling physical copies of digital files is quite literally last century, and the market is showing that.

     

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  10.  
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    pixelpusher220 (profile), Sep 24th, 2013 @ 1:33pm

    Re: Sometimes industry likes long copyrights without intending to make money off them

    What the industry doesn't yet understand is that selling a 1, 2 or 3 billion 'streaming' (i.e. netflix) subscriptions will make them more money, more consistently than trying to lock stuff up behind DRM ever will.

     

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  11.  
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    Anonymous Coward, Sep 24th, 2013 @ 1:36pm

    In one experiment, they had one group of subjects write three-line haikus, to be entered in a contest with a prize of $50. These authors had the option of selling their poems (and the chance to win $50) to another group, the bidders. Both the authors and the bidders were asked to value how much a particular haiku was worth.

    It turned out that, perhaps not surprisingly, the creators of these tiny works of art valued them more than the people who were thinking of buying them. “Our data revealed that Authors valued their work more than twice as high as Bidders ($20.05 versus $9.21),”


    People were willing to pay $10 for a Haiku? I'm in the wrong line of work.

     

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  12.  
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    PRMan, Sep 24th, 2013 @ 1:37pm

    Re:

    55 percent of movies are rated R, roughly 35 percent are PG-13, around 10 percent are PG, and only 3 percent are G

    But studies show that PG movies make the most money on average. So, the takeaway? Make more R rated movies.

    These aren't the most logical people you are dealing with here...

     

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  13.  
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    Anonymous Coward, Sep 24th, 2013 @ 1:41pm

    Re:

    A Haiku for Sale
    It is worth twenty dollars
    I'll take a mere nine

    (for Techdirt, it's free)

     

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  14.  
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    Anonymous Coward, Sep 24th, 2013 @ 1:42pm

    Re: Re: Sometimes industry likes long copyrights without intending to make money off them

    The amount of culture we have access to nowadays is immense. Betting on scarcity is no longer a winning bet.

    Instead, what Netflix is doing (providing easy access to a large amount of culture, in a single place, as a service) has a lot of value.

     

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  15.  
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    Rich, Sep 24th, 2013 @ 1:43pm

    Re:

    His head probably already exploded.

     

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  16.  
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    That One Guy (profile), Sep 24th, 2013 @ 1:46pm

    Re: Re: Sometimes industry likes long copyrights without intending to make money off them

    Heck you could probably even turn the free older stuff into a decent source of profit if handled correctly.

    (An example using old games)
    Say you had a service where for $X per month you'd have access to a whole treasure trove of older games, updated so they were playable on newer systems without any hassle for the customer.

    Sure people could download the games themselves for free, but then they'd have to deal with emulators, setting things up to trick the games into running on newer systems, and all that annoying stuff. Offer them a hassle free way to enjoy those games though, and suddenly I'm sure you'd have people throwing money at them, just for the chance to play games that they thought they'd never be able to find/play again.

     

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  17.  
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    E. Zachary Knight (profile), Sep 24th, 2013 @ 1:50pm

    Re:

    Just from reading that blurb, I get the idea was that the selling of the haiku was to a buyer who would submit it to the contest. So it was a value/risk assessment.

    For the seller/creator, the risk was enter the contest and potentially make $0 or sell it to someone else to risk and make a smaller amount of guaranteed money.

    For the buyer, the idea was to get the haiku for the lowest possible amount in order to potentially gain the highest possible return on investment.

    It may be a flawed study that doesn't reflect the actual creative marketplace we have.

     

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  18.  
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    Anonymous Coward, Sep 24th, 2013 @ 2:51pm

    Gran Theft Auto cost $250 million dollars to make and sold 1 billion dollars in 3 days.

    Hollywood screams: Pirates are ruining sales.

    Take Two: It is a great year!

    http://www.huffingtonpost.com/2013/09/20/grand-theft-auto-five_n_3963799.html

    What is wrong with that picture?

    LoL

     

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  19.  
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    That One Guy (profile), Sep 24th, 2013 @ 3:03pm

    Re:

    Ah, but you're not seeing it from their perspective, where it doesn't matter how profitable something is, they'll always complain that they were 'owed' far, far more, and it's due to those dirty pirates that they didn't get it. No one has a more developed sense of entitlement than hollywood and music label execs, they truly and honestly seem to think that nothing is more important than their 'products', and that they are owed all the money they could possibly dream of because of it.

    As an example, hollywood has been making an absolute killing in the theaters for years now, making record breaking profits, but do they celebrate their success? Not hardly, if you went by what they're always saying then those profits are a myth, those dirty pirates have them on their last legs, and it's only with the passing of protectionist bills that they'll be able to hold on for even one more year.

     

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  20.  
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    James Burkhardt (profile), Sep 24th, 2013 @ 3:27pm

    Re: Re:

    People with that arguement make a major fallacy. There are two factors increasing the take in the G and PG markets. A) the very scarcity you are talking about. Low input into the market means more people go to see those movies as they have fewer choices for family friendly entertainment. B) An automatically larger consumer base. Assuming children are the targeted audience of most G and PG movies, you rarely get just the child, they get the parent as well. Groups are more common.

    When you look at those factors G and PG films look to be the best films to make. However: If you flood the market with children's films you lose that scarcity. You also start to get the 'dilution' films, films which do well on paper but hurt a brand/studio in the future sales department. As anyone who looks at the size of children's books to young adult books to the size of 'adult' book sections in a bookstore will determine, books that are entertaining and appropriate to younger readers are harder. Many tropes used by authors writing for an adult audiance aren't appropriate or go over the young reader's head. Parents willingly go to Pixar films because of the quality and entertainment of a pixar film. But if that is no longer seen as true, pixar films may no longer remain 'must see' with new parents, and therefore new viewers. Disney hit this problem when they thought direct to video sequels was a gold mine. They undermined their name with a lot of the up-and-coming parents who were fans of the animated films, and work done by disney is often taken with a 'long arm' approach nowadays.

    A good example of quantity over quality would be Cars 2 for Pixar. Cars 2 was the first Pixar film to get mostly bad ratings (kids love it, but unlike previous pixar films, adults didn't), and while it made money because of the market force Pixar has, if they continue the idea of 'we need to keep chugging out a film every year", they will sacrifice their goodwill with the adults who will be making the next batch of kids. Remember these are the cord cutters. Commercials are less and less a guaranteed way of getting a child to nag their parents into going to a film.

    Once you start diluting the children's market, I imagine in 5 years you'll see someone ask why the market is mostly childrens films when its the R films grossing the most....

     

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  21.  
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    James Burkhardt (profile), Sep 24th, 2013 @ 3:31pm

    Re: Re: Re: Sometimes industry likes long copyrights without intending to make money off them

    Point in case: GOG.com produces DRM free copies of older games for $2-$5. They go through the hassle of building emulation wrappers, they get the licencing, and I get a game that just works. Hell yes i buy from them!

     

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  22.  
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    John Fenderson (profile), Sep 24th, 2013 @ 3:43pm

    Re: Re: Re:

    The very fact that movies rated "G" or "PG" are assumed to be family or children's films is a big, big part of the problem, too.

     

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  23.  
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    James Burkhardt (profile), Sep 24th, 2013 @ 3:58pm

    Re: Re:

    It does in many ways. Look at books. Ian Fleming (wrote James Bond) wasn't popular here in america until JFK (who started reading James Bond after meeting Flemming) told a reporter that the James bond books were his favorite. Suddenly its a national pastime and we have movies! If Fleming had never met JFK, if JFK didn't find him amusing, if JFK didn't like the books....James bond would not be a huge part of popular culture. Hitting it big and making money is a Contest in many ways. One which quality, consistent, compelling writing helps, but does not guarantee anything. Its a contest. A contest in which one author is liked by the right person that starts a chain reaction that causes a lot of people to read it.

    Publishers are the 'buyers' in this scenario. They are valuing a work based on the perceived likelihood that the costs of publication will be overcome by the income when the book takes off. The creator is mitigating his risk over the cost of publication and marketing by selling to a publisher. he makes less profit overall, but has fewer sunk costs to concern himself with.

    The same (in general terms) value/risk assessment goes into a contest as a publishing deal. Will this book/haiku get popular/chosen in a contest?

    Now others might be more willing then me to explain at length the application of this analogy to the risk of purchasing a $10 e-book which can get 'unbought' at any time, or a $60 video game. But will just posit that I use a risk/reward concern when making these purchases.

    Is it a perfect model? no. But given other suggestions in the market relating to overpricing (ebooks, video games, digital vs. analog pricing), it does lend weight to the arguement.

     

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  24.  
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    art guerrilla (profile), Sep 24th, 2013 @ 5:00pm

    Re: Re: Re: Re:

    ...and -sorry- even *more* importantly:
    simply because a film gets a PG or 'worse' rating, does NOT mean it isn't a 'family' movie...

    for example, 'stand by me' is rated R for various mostly stupid reasons, but it is a quintessential coming-of-age movie that resonates with kids...

    simply looking at how violence is NOT taken into account as assiduously as profanity, nudity, sex, etc, has been a staple of -justly- sarcastic remarks about the ratings 'system', for forever...

    it is still true: the ratings system is arbitrary, outdated, and inconsistent...

    as far as that goes, i'm not a huge movie fan by any stretch, but i've read MANY articles where the director, or producer, writers, actors, whatever, talk about how they 'self-censor' in numerous ways to -mostly- avoid an R (or *gasp* X) rating...

    its fucking stupid; that isn't 'art' made freely, its pre-digested, pre-approved, pre-censored pablum compromised for the least common denominator...

    art guerrilla
    aka ann archy
    eof

     

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  25.  
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    Anonymous Coward, Sep 24th, 2013 @ 5:10pm

    Intellectual Property. Even the name itself sounds like an oxymoron. If someone truly wants to keep their intellectual thoughts secret and hidden from the world. All they have to do is keep those thoughts inside their own mind and never publicly release them.

    Once those thoughts are released into the public, they are no longer under the original thinkers control.

    I swear, this whole copyright/patent/trademark nonsense is like dealing with immature children.

    Children typically say things such as, "stop copying me" and "that's my toy, give it back".

    Then the mother usually enters the room and tells them to share their toys, and lectures them on how to be a decent human being.

    Hopefully one day humanity will grow up, and stop acting like a spoiled brat.

     

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  26.  
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    Anonymous Coward, Sep 24th, 2013 @ 5:15pm

    Re: Sometimes industry likes long copyrights without intending to make money off them

    I don't think "chopping off the long tail" is a big motivator. I think it's more about *who* within an industry is making the money. Having to adapt is hard work.

    Remember, people tend to judge status in relative terms. For example, if I'm getting a 30% of a million dollar pie ($300K), and 28 people are splitting the rest (average $25K), I generally feel better about myself than if I'm getting 3% of a $14M pie ($420K) and the 28 others split the rest (average $485K). So even though I'll be a lot better off in the second scenario, I may resist it, because I won't be *relatively* better off.

     

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  27.  
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    Anonymous Coward, Sep 24th, 2013 @ 6:25pm

    Re:

    You make the silly assumption that he will actually read the article.

     

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  28.  
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    Anonymous Coward, Sep 24th, 2013 @ 7:54pm

    Re:

    When said individuals contributing to the problem are being paid to act like spoiled brats... you have a major issue on your hands.

     

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  29.  
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    Sunhawk (profile), Sep 24th, 2013 @ 8:08pm

    Re: HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    Actually, yes it *is* empirical research; or, at least, it could be.

    NULL HYPOTHESIS 1: The amount of a potential reward has no impact on the willingness to create.

    Then you go about offering people different reward levels to create a small creative work (and haikus were probably chosen because it's not difficult to make something that technically qualifies). You determine rate of acceptance at each reward level and compare.

    Assuming you have a sample size that is large enough to be considered properly representational of the population as a whole, it's most definitely a possible bit of empirical research.

    NULL HYPOTHESIS 2: The likelihood of a potential reward has no impact on the willingness to create.

    See above, except change the number of rewards instead of the amounts.

    NULL HYPOTHESIS 3: The amount of a reward has no impact on the quality of a creative work.

    As for 1, except for the need for some measure of quality of the haikus. The easiest way is to either try and get a small group of 'experts' in the form, or to take another group of participants and ask them to compare pairs of haikus (and choose one as better than the other) repeatedly.

    - someone who *is* reading about and performing empirical research.

     

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  30.  
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    PaulT (profile), Sep 25th, 2013 @ 1:41am

    Re: Re:

    Erm, not really. Do you have an original source for those numbers?

    I suspect that a majority of the R rated numbers are independent movies that have nothing to do with the studios. So, people who aren't willing to comprehend art for profit even if they could get more money by censoring themselves. Major studios are far more likely to cut down a movie from R to PG-13 for extra audience numbers even if that damages the film artistically.

    But that's a simplistic metric that doesn't tell the whole story. The MPAA is far kinder to studio fare and give those films lower rating than independents (see the documentary This Film Is Not Yet Rated). Horror films will naturally trend upwards while animated features trend downwards. Studios often release cut-down movies at the box office so that they can release an "unrated" version to home formats, and so on. There's also the issue of distribution - of course an R-rated indie flick distributed on 500 screens isn't going to do as well as the new PG-13 superhero movie distributed on 3,000 screens.

    Generally speaking, there's a hell of a lot more that goes into a movie's success than simply what the MPAA gave it as a rating. Otherwise, for example, why would a PG-13 horror movie (Insidious Chapter 2) have only taken around half at the box office as an R rated horror movie this year from the same director (The Conjuring) despite having comparable opening weekends and distribution?

     

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  31.  
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    Niall (profile), Sep 25th, 2013 @ 2:23am

    Re: Re: Re:

    I think it's sad that I first read JFK as JK Rowling :/

     

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  32.  
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    Who Cares (profile), Sep 25th, 2013 @ 4:14am

    Not a myth

    Hollywood movies (almost) never make a profit.
    For example David Prowse (played Darth Vader in Return of the Jedi) isn't get his share of the net profit since the movie still hasn't made since it was made in 1972.

    See more at: this link

     

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  33.  
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    Rikuo (profile), Sep 25th, 2013 @ 6:01am

    Re: Not a myth

    19 SEVENTY 2? Return of the Jedi? Third movie in a series that began in 1977?

     

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  34.  
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    Anonymous Coward, Sep 25th, 2013 @ 6:09am

    Re: Re: Not a myth

    Hollywood accounting. Gross expenses always seem to stay just a bit ahead of gross receipts. Lots of examples, lots of litigation. Don't sign for points on the net -- hold out for the gross. And have shark-lawyers.

     

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  35.  
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    Anonymous Coward, Sep 25th, 2013 @ 8:08am

    Re: HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    That quote is more or less verbatim the 'notion' that Mike has been espousing for some time now? Mike has always said he thinks copyright makes sense but that the current structure leans to far in the copyright holder's direction. Maybe you're confusing him with some commenters who have said copyright should be done away with altogether?

     

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  36.  
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    John Fenderson (profile), Sep 25th, 2013 @ 8:57am

    Re: Re: HA, HA, HA! You right, "S. T. Stone": it's HILARIOUS!

    That's likely. A common deception from some of our regular "critics" is to take the opinions of commenters that they consider the most offensive or egregious and pretend those are the opinions of Mike and/or Techdirt as a whole.

     

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  37.  
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    Who Cares (profile), Sep 25th, 2013 @ 10:17am

    Whoops

    Guess multitasking is not supported by my brain.
    The movie came out in 1983 not 1972

     

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