This Month in IP Insanity (April 2015)

Now that the academic year is slowing down, I can start to account for all of the developments in IP law and technology again. Here are a handful of events and discussion points for the past month:

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  1. Tidal has turned out to be a bust. Predictably, Jay-Z has pulled all of his music off of Spotify and Youtube, meaning Tidal is the only place where you can access it. As I commented during the odd fanfare of its release – while we’ve certainly increased access costs, I haven’t really seen any big boon to musical innovation, and it’s not clear that any other artists (big or marginal) will flock to Tidal. It’s probably just a rent-extraction system for the musical elite.
  2. More streaming music news — Spotify is lobbyisting up (which somehow doesn’t sound as catchy as “lawyering up”, perhaps that’s for the better). I’ve reported upon Spotify before, in the context of Taylor Swift’s criticism of streaming music. Spotify seems to be preparing to go to war with Apple, the latter of which is preparing to release it’s own streaming service, the newly acquired and revamped “Beats.” At the same time, the DOJ is considering another pass at music licensing regulations, and the blue moon when Congress decides to revamp copyright laws may also be around the corner (due, no doubt, to the fact that 2018 will see the first batch of copyrights to finally expire since 1923).
  3. Another reason Spotify is lobbyisting up, and yet another music streaming news bit, is that Grooveshark has finally streamed its last. From The Atlantic’s subtitle, “Everyone knew you were probably illegal all along,” one wonders how they were able to persist for so long without properly acquiring licenses to all streamed music. Apparently it was “good lawyers,” but even that will only get you so far for so long…
  4. John Oliver set his hilarious investigative journalist sights on patents, specifically patent trolls. [I should add that I watched this live the night before my dissertation defense, taking it as a good omen.] It was a very entertaining piece, highlighting the true cost of non-practicing entities (NPEs) who extract rents from would-be users or innovators who use something the NPE holds a patent on (but the NPE does not actually produce anything). Alex Tabarrok, commenting on a further link to Timothy Lee, rightfully discuss how trolls are not the fundamental problem with the patent system, just one of the system’s most visible and absurd excesses.
  5. Not a news story, but on a related note, I recently read a dated article by Stephan Kinsella arguing that patent trolls are akin to mafioso, who don’t want to actually block competition (like actual patent holders do), but rather keep it flowing so they can just wet their beak. This framework makes actual patent holders, who would exercise their monopoly power and block future innovation for want of rents, actually seem worse than the trolls, counterintuitively. It sounds very similar to Mancur Olson’s stationary bandit being economically superior to the roving bandit model of government. I’m inclined to agree, but the point again is that the system is broken, not those who are exploiting it best.
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  7. Onto cable TV, the market for which was blown open this past month by Verizon FIOS’s announcement that it will finally will break up the famous cable bundle into smaller packages. This is far from a la carte channel purchasing, long held as the ideal from the consumer’s point of view, but not the economist’s, as Verizon will offer several slimmer packages with about 20 channels including the famous broadcasters and ESPN, etc. It will be interesting to see how this affects the cable industry: established players don’t like it.
  8. Our benevolent overlords at Google now want to get into the phone carrier business. Google’s proposed Project Fi will cost $20 a month for talk and text, beyond free Wifi, and another $10 per gigabyte of data used each month. Most interestingly, unused data can be credited to the next month’s quota. While a welcome innovation, Google will have to build up its network and reputation as a carrier beyond simply a software (and limited hardware) company, to compete with the infrastructure of Verizon, AT&T, and Sprint.
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Music Copyright’s Biggest Winners Want You to Pay More Money

Many of the music industry’s biggest stars gathered today for a unique press conference to promote Tidal, a new hi-fidelity streaming music service. On stage, an ensemble cast of promoters — Jay-Z, Beyonce, Jack White, Kanye West, Rihanna, Alicia Keys, Daft Punk, Coldplay’s Chris Martin — declared their intent to revolutionize the music industry. The key here is that Tidal is “artist-owned” and controlled, as compared to studio-managed.
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Artists have long been critical of freemium streaming services, like Pandora, Grooveshark, or Spotify. Tidal, on the other hand, has no free option, but rather a two-tier pricing option: $10/month for regular streaming and $20/month for hi-fidelity streaming. Its co-owners (the stars listed above), proclaim that this will help return music back to the artists.
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As I argued when Taylor Swift launched her tirade against “free music,” the problem with our current system — for both consumer and average artist alike — is the publisher-centric model of copyright. Publishers benefit largely at the expense of consumers and the average artist. Hence, there are reasons to believe that this new service could be a welcome innovation. However, I specifically mention that copyright hurts the average artist, as, in addition to publishers, copyright’s prime winners are the superstar artists — the very ones who are launching this new service.

Thus, while I applaud a move to reduce studios’ rent-seeking capacity, I am skeptical about the effect this service alleges to cause. Without systematically changing the structure of the copyright system, we risk this firm simply becoming its own rent-seeking studio. Thus, the question of Tidal’s marginal benefit is twofold: whether it will improve the status quo of accessing existing works, and whether it will increase innovation.
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If Tidal only ends up being a “big boys (and girls) club” for the superstars (so far, the only artists appearing on it are in Jay-Z’s inner circle), it will simply be a new $20/month toll. Should all of the major artists pull a Taylor Swift and eject from the free streaming services to exclusively list on Tidal, then this certainly is a loss for consumers and a transfer to the elite artists. It will be much less an artists’ revolution in the music industry than the artist elite forming their own rent-seeking studio. Meet the new boss, same as the old boss.

One is also reminded of Neil Young’s recent flop with the “revolutionary” crowdfunded Pono service. Young’s service turned out to be pure snake oil not worth the cost — I wonder if Tidal consulted him on its own potential coup.
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Among artists, copyright primarily benefits only those 1% superstars that made it big. Smaller acts are probably harmed by copyright on net. Everyone involved in the copyrighted entertainment business, from consumer to artist to publisher, has to put up with higher transactions costs arising from the need to search for existing copyright holders, negotiate with them, and license their own work downstream in a tangle of red tape. However, those that have the most socially valuable (highest grossing) works can justify the cost of copyright because it helps them minimize their losses from piracy.

This is for two reasons: First, people primarily want to pirate the biggest stars. On average, consumers would rather illegally download Interstellar and Beyoncé than Final Destination 12 and your friend’s cousin’s high school cover band.* Second, those big stars have greater bargaining power with their publishers. Established musical artists with immense clout can demand higher advances and royalty rates from their record labels. These are precisely the people seen on the stage for Tidal.

Now, if there was evidence that this increase in price would stimulate greater innovation in the field, this might be justified on efficiency grounds. There is a well-noted tradeoff between innovation and access: ceterus paribus, the more you increase copyright, the less access there is to existing works, complements of added monopoly power, but it makes acquiring copyrights more profitable and hence gives a greater incentive for artists to produce new works. There are certainly diminishing returns at the extremes, particularly in a 100% copyright world, which becomes a pure tragedy of the anti-commons. The effects of a 0% copyright world are still up for debate.

If new independent or unknown artists support Tidal and begin to use it, then the new service might justify the added cost to users. These lesser known artists, however, are more likely to support piracy and streaming as free advertising to help them churn out the real money made by (non-superstar) artists — merchandising and concert revenues. Thus, unless they find that Tidal gives them a bigger boost relative to other methods, odds are this system will not stimulate much musical innovation. Should that be the case, then it seems like this move is just to raise rents for existing copyright holders, rather than stimulate a new music revolution.
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Let’s not also forget the obvious fact that raising the price for music services makes piracy all that more attractive to many consumers, should popular bands emigrate exclusively to Tidal. It was arguably Spotify and co.’s freemium model that dissuaded many would-be pirates in the first place such that nobody really talks about song piracy anymore (it’s video these days).

– – – – – – –
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* The modern age of Bittorrent, however, provides a potential caveat. One could argue that people who have diverse interests might be more likely to illegally download movies and songs that aren’t superstars to save money. Consider “I don’t want to waste my time at the movie theater to see that crappy horror flick X, I’ll just download it; but the new action [franchise] blockbuster movie in 3D, that’s something we have to go see!”

T-Swift and Spotify are Never Ever Ever Getting Back Together (?)

This comes as a little late, but since I am the occasional fan of T-Swift (much to the chagrin of my girlfriend; haters gonna hate…) and an enormous fan of Spotify, I feel the need to comment. Recently, Taylor Swift has pulled all of her music off of Spotify. She has also taken what appears to be the moral high ground, claiming in a prior op-ed, as so many others have, that music should not be free, and that streaming services like Spotify, Pandora, Grooveshark, and the like are contributing to the music industry’s decline.
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Some have argued that Swift’s move is a shrewd monetary calculation. Billy Bragg argued that she is merely a part of a corporate stunt to exclusively join Google’s new streaming service, though the facts don’t seem to line up. Others say this benefits Apple, who is supposedly about to launch its own streaming service to rival Spotify. In any case, let’s take T-Swift at her word.
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In response, Spotify has published a website detailing how its royalty payments work, and how it contributes to the music industry by monetizing would-be pirates. Spotify has already paid about $2 billion in royalties to rights-holders.
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Roughly, Spotify pays artists a royalty of between $0.006 and $0.0084 per instance played. (In truth, it’s not a flat rate, but is adjusted for certain factors like popularity and country of origin.) Let’s do a few back-of-the-envelope calculations: Take the conservative estimate of Spotify paying artists 0.6 cents per play. Let’s further make the best-case assumption for the artist by saying that if you were to buy that same song on iTunes for $1.99, the artist gets that entire $1.99. Assuming people actually like the song and will replay it on Spotify, it would take about 332 plays to equal that revenue from one person. The upside for Spotify, however, is potentially limitless – assuming someone will play that song many many times over their lifetime, as opposed to the one-time fee for iTunes.
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When we relax the assumption that the artist gets all iTunes revenue, and bring it down to a realistic 10%, that one-time purchase gives the artist about $0.20 per person. This would only require about 33 plays to match. Granted this is a highly simplistic analysis which would obviously differ with bands and their popularity.
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Is this enough for the artist? Probably not. A lot of people have complained about Spotify’s paltry revenue to artists. I don’t know what the “optimal” price for a song is, much less how much is “fair.” But it is clear that Spotify’s model clearly adds value to the industry, and probably even to artists.
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What Spotify is actually hinting at, is that artists are not being hurt as much by streaming services or even by pirates, as they are by their own studios. Artists taking only 10% of the revenues of digital sales is a pretty raw deal. As I mentioned before, perhaps studios serve a legitimate economic function of lowering transactions costs of tapping into economies of scale for distribution. The problem is by concentrating all the money and power into a small handful of firms that control all of the distribution rights in our crazy copyright system is that they end up having the influence to negotiate their massive cut of the rents (and use the political system to do so when the market won’t oblige). This is precisely why Spotify (and iTunes for that matter) can only pay artists such a low royalty. Spotify pays 70% of its revenues to rights-holders, who are are often the studios, with artists getting whatever is left. Despite the value that Spotify seems to be bringing, the company allegedly has yet to make a profit because of these immensely high costs, and some say their model could be inherently unprofitable no matter how many subscribers they win.
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Which brings us back to Taylor Swift’s stand. Time correctly argues that even if Swift’s strategy works, it will not have a wider impact on the music industry. Only someone with who is already successful and has the level of clout equal to Swift’s could hope to make a living solely on digital sales. Streaming helps bands get discovered, and tap into the real money which comes from touring and merchandise. More fundamentally, however, is that streaming services like Spotify are actually incentivizing people to switch from openly pirating music. Forcing people to return to paying for downloads will encourage them to return to piracy, whereas the “freemium” option to stream music for no monetary cost (but suffer through ads) encourages legal discovery and consumption. The sheer convenience might even convince many consumers (as it did for me) to pay for the premium subscription, where Spotify actually earns revenues to pay to artists. Hell, even Pink Floyd, Led Zeppelin, Metallica (!) are now on Spotify.