$7 billion of neoliberalism

The Stationers' Company mark

The Stationers’ Company: an early example of government cultural policy. Image: Wikipedia.

Australian economist Jason Potts has restarted an important debate about cultural policy in this country with an article entitled “You’ve got $7 billion – so how will you fund the arts?“. I just wish he hadn’t analysed Australian cultural policy from the sort of instrumentalist, neoliberal position we find so familiar in many other spheres of policy debate.

I’ll say right up the top that I’m a fan of Potts’ work, and think him a pretty clever fellow. His work on evolutionary economics is in its own way quite heterodox, and a far cry from the sort of automatic and reflexive market worship we often associate with both the RMIT Economics school, and the Institute for Public Affairs, which he is apparently doing some work with.

On the other hand, his op-ed in The Conversation on cultural policy  is not one of his more perspicacious efforts. Justin O’Connor has already written a useful response, but I thought I’d add a few points of my own, set forth below.

Let’s start by setting forward Potts’ argument. Then we’ll move on to a critique.

Last year the Australian Bureau of Statistics did the maths – government spends about A$7 billion annually in Australia on arts and culture. The exact dollar figure varies depending on what we count, but it includes heritage, broadcasting and botanical gardens, along with all the usual suspects: performing arts, literature, film, visual arts, and so on.

This is apples, oranges and all sorts of random fruit.  “Heritage” funding, for instance, includes such things as war memorials, botanical gardens, zoos and some national parks expenditure. That’s a pretty different sort of thing to grants to game design companies or tax incentives to Hollywood movie studios. Does it actually make sense to treat all of these things as the same sort of expenditure?

Anyway, moving on:

To make this exercise fun, let’s suppose that no political horse-trading was involved in reaching this figure. Let’s assume this figure is the result of disinterested economic calculation of the size of the positive externality in the production of a public good, all wrapped in willingness-to-pay studies, and tied with a big bright cost-benefit ribbon.

So what’s next?

Do we put away our box of shiny economic tools and turn to grubby political compromise to allocate the exact market-failure correcting amount of public funding?

In Australia, as in Europe, this is more or less what we do. Economics to justify an economically efficient level of spending – and politics to implement it.

Really? Last time I looked, in most nation-states, including most democracies, politics is almost always the over-riding factor in the way  budget priorities are set. Sure, politicians and lobbyists and ordinary citizens use economic arguments to make the case for this spending increase or that tax cut. But the process is always and by definition political. On the really big picture stuff, economics arguably can’t really help us. For instance, how much should Australia invest in national defence, or climate change mitigation? The answer depends on inherently political judgments, such as whether you think global warming is real, or the likelihood of a major war.

Indeed, ‘economic efficiency’ is itself an inherently political argument, because it applies a very particular set of assumptions to public policy — namely that Pareto efficiency can actually hold in the first place. In markets in which there is imperfect information — and cultural markets are amongst the most opaque of all — Pareto efficiency may well be impossible. Potts knows this, which is why his quip about the “exact market-failure correcting amount of public funding” strikes me as disingenuous.

So let’s get to the guts of Potts’ argument:

… modern economics suggests that it would be better if we turned the process upside down. Let politicians determine the level of funding in a given area – and let economists determine the allocation.

Why? The political model of funding allocation is very bad at creating – or even recognising – new knowledge. In fact, political allocation mechanisms cause incentives that reward lobbying and punish experimental or innovative thinking.

Only by weakening those incentives can arts and cultural funding seek to be more than a rearguard preservation exercise or sinecure for vested interests.

I suppose it’s something of ad hominem attack to point this out, but it’s just a tad ironic that the person making this argument is a Federation Fellow of a publicly funded Australian university. A person writing for a website, by the way, also funded by universities and the government, using a medium — the internet — that was created almost exclusively by public investment in research.

“Political allocation mechanisms”, by which I think Potts means governments making budget decisions, certainly create incentives that reward lobbying. Then again, so do market mechanisms. Markets require the state to provide a level playing field via such basic institutions as property rights, police forces and courts of law. All of these create incentives for vested interests to plead their cause.

This is no trivial point, by the way: the cultural industries are completely dependent on intellectual property rights such as copyright and patents. The very fact that many cultural goods are non-rivalrous and non-excludable creates huge incentives for content industries to lobby governments to create and strengthen IP regulations — as has been well documented by researchers such as Lessig. When property rights become unenforceable, digital goods become a whole lot less valuable. Anyway, Potts’ claim was that public spending creates lobbying, which is bad. On this analysis, many of the cherished market mechanisms of the cultural industries must also be bad, because they were created via lobbying.

This points to a further naievete: the implicit belief that cultural goods and services are just like any other industrial product.

Even a moment’s reflection shows us this isn’t true. The products of cultural industries are not like any old widget or commodity: they are not even really the same thing as an iPhone or an operating system. Cultural industries produce symbols, and symbols are powerful (or at least highly influential). An aluminium ingot or a wind turbine cannot affect the democratic judgment or voting intentions of millions of citizens. A newspaper empire or television network can.

It doesn’t really matter whether you think that the power of media companies to swing elections is illusory. The history of modern media policy tells us that governments certainly do think symbols are powerful. Media has generally often been heavily regulated, sometimes on the grounds of public interest, but more commonly for naked reasons of political expediency. Even in the US, with its famous First Amendment, successive Washington administrations have had no qualms about controlling spectrum, imposing stringent copyright regulations, and spying extensively on their citizens’ communications. Hosni Mubarak turned off the internet in Egypt for a reason. Whether it’s internet filters or the Stationers Company, the political nature of cultural industries means they can’t be divorced from questions of power.

This curious ignorance of the symbolic reality of culture is often found amongst unsophisticated approaches to cultural economics — much as economics as taught in the modern university tends to ignore key aspects of sociology. As a result, when economists issue prescriptions for cultural policy, they tend to propose cures that are far worse than the supposed disease.

Perhaps this is why Potts misconstrues key facts about real-life cultural policy. For instance, he seems to think arts funding is about “inputs, not outputs”, when in fact nearly all Australian government arts grants are legal contracts specifying outcomes, allowing the government to recoup the funding if not properly acquitted. He also equates prizes as some sort of gold standard of outcome, which is strange because prize committees show exactly the sort of “bullshit” he decries in grant panels.

Similarly, when he argues for “tax credits to anyone – private citizen, corporation, foundation or NGO alike – for spending on arts and culture”, he seems to imply these don’t currently exist. In fact, they do. An individual donating to a DGR-status cultural organisation already receives a tax credit, while a non-profit NGO or foundation already pays no tax beyond the GST.

Where to next for the Google Book Settlement?

This week a US judge ruled against the Google Book Settlement, the latets in a seven year legal saga that I’ve covered in some depth here.

Jerry Brito has a good explainer of the background of the case:

In mid-2005, the Author’s Guild and the American Association of Publishers filed suit to stop Google from scanning any more books. Soon the Author’s Guild’s case was certified as a class-action lawsuit, meaning that anyone who had ever published a book—millions of authors—would be part of the class represented and would be bound by the result of the case.

An Unsettling Settlement

Three years later, after extensive negotiations, the parties announced they had reached a settlement. Google would pay $125 million up front and would then be allowed to continue scanning books and making them available online. More importantly, Google would be allowed to offer not just snippets, but it would be allowed to sell entire text of books as well. The copyright holder would get about 2/3 of the revenues and Google would keep 1/3.

On its surface, the proposed settlement was a boon for all involved. Google would get to continue digitizing books, authors and publishers would get a cut of the profits, and consumers would get universal access to almost all of the world’s books. But reading between the lines, the settlement proved to be problematic.

Because it was a settlement to a class-action lawsuit, it meant that all authors who had ever published a book were bound. Google could scan any book without first asking for permission. If an author didn’t want his book to be scanned or included in Google’s database, he had to contact Google and opt-out. This would have turned copyright on its head.

As a result, many authors protested. The Author’s Guild and the publisher’s association had negotiated on behalf of millions of authors, and many felt the deal didn’t represent their wishes. Almost 7,000 authors wrote to the court asking to be removed from the lawsuit’s plaintiff class.

Saving the Orphans

Another contentious aspect of the settlement was how it treated “orphan works,” books the authors of which are unknown or can’t be found. It’s a well-known problem in copyright that members of Congress have tried to fix several times.

The problem is that if a company like Google wants to digitize a copyrighted book, and it can’t find its author to ask for permission, then its choices are 1) scan the book anyway and face heavy penalties if the author surfaces later and sues, or 2) leave the book undigitized and out of a universal library. As a result, hundreds of thousands of books are in a kind of limbo, not accessible to readers even if the author may well have been fine with digitization.

The Google Books settlement presented a solution to the problem. Because it bound all authors—-known and unknown—-Google could proceed to scan orphan works without having to worry. If an author later surfaced who didn’t want his book used, he could no longer sue Google. He could opt-out of the program and claim a check for the revenues associated with his book, but no more.

Some welcomed this solution to the problem, but others, including the Department of Justice, pointed out to the court that it would give Google a monopoly over orphan works. Because the settlement would only apply to Google, if another party like Amazon or the Internet Archive wanted to create its own digital library that included orphan works, it would not get the same protection.

And it wouldn’t be easy for other to get the same deal. Short of Congressional action, the only way a company like Amazon could get similar treatment would be to settle a class action suit of their own—a very difficult and time-consuming set of events to replicate. Additionally, because the authors and publishers who negotiated the Google deal are getting a cut of revenue, some have suggested that it would be in their interest to make sure Google remained a monopoly and would therefore not settle as easily with other parties.

What’s Next

Because class-action lawsuits can be as controversial as this one, the law requires that a court approve a settlement before it becomes binding. The court accepted over 500 briefs from various parties supporting or opposing the settlement and early last year held a hearing on the fairness of the settlement. It rejected the case yesterday.

The options available now to Google and the authors and publishers are:

  1. Continue litigating the original lawsuit, which is an unlikely scenario.
  2. Amend the settlement to make it opt-in, meaning that authors would have to give permission before their books are scanned.
  3. Appeal the judge’s decision to a higher court.

Judge Chin seemed to invite a new settlement, saying in his opinion that “Many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”

In the New York Times, Robert Darnton, himself a librarian and a strident if highly-0informed critic of the deal, weighed in with this opinion piece:

This decision is a victory for the public good, preventing one company from monopolizing access to our common cultural heritage.

Nonetheless, we should not abandon Google’s dream of making all the books in the world available to everyone. Instead, we should build a digital public library, which would provide these digital copies free of charge to readers. Yes, many problems — legal, financial, technological, political — stand in the way. All can be solved.

The Chronicle of Higher Education carries a good interview with Pamela Samuelson:

It’s the only ruling really that the judge, I think, could have made. The settlement was so complex, and it was so far-reaching. With the Department of Justice and the governments of France and Germany stridently opposed to the settlement, it seems to me that the judge really didn’t have all that much choice. So the ultimate ruling, that the settlement is not fair, reasonable, and adequate to the class, is one that I think was inevitable.

The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.

The EFF’s Corynne McSherry has this analysis:

On the policy front, the court recognized – as do we – the extraordinary potential benefits of the settlement for readers, authors and publishers. We firmly believe that the world’s books should be digitized so that the knowledge held within them can made available to people around the world. But the court also recognized that the settlement could come at the price of undermining competition in the marketplace for digital books, giving Google a de facto monopoly over orphan books (meaning, works whose owner cannot be located). The court concluded that solving the orphan works problem is properly a matter for Congress, not private commercial parties. Sadly, Congress has thus far lacked the will to do so. Perhaps yesterday’s decision will finally spur Congress to revisit this important issue and pass comprehensive orphan works legislation, that allows for mass book digitization.

That said, the court also got some things fundamentally wrong in its copyright analysis. For example, it states that “a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute” and then proceeds to quote at length from the letters of numerous authors (and their descendants) who share the misguided notion that a copyright is, by definition, an exclusive right to determine how a work can be used. We respectfully disagree. Copyright law grants to authors significant powers to manage exploitation of creative works as a function of spurring the creation of more works, not as a natural or moral right. And those powers are subject to numerous important exceptions and limitations, such as the first sale and fair use doctrines. Those limits are an essential part of the copyright bargain, which seeks to encourage the growth and endurance of a vibrant culture by both rewarding authors for their creative investments and ensuring that others will have the opportunity to build on those creative achievements. Thus, as the Supreme Court has explained, such limits are “neither unfair nor unfortunate” but rather “the means by which copyright advances the progress of science and art.” If the legal issues raised in the underlying lawsuit are ever litigated on the merits, let’s hope this or any future judge keeps the traditional American copyright bargain firmly in mind.

Michael Liedtke of the Associated Press thinks this is a micvrocosm of the larger anti-turst and monopoly challenges facing Google:

This week’s ruling from U.S. Circuit Judge Denny Chin did more than complicate Google’s efforts to make digital copies of the world’s 130 million books and possibly sell them through an online book store that it opened last year. It also touched upon antitrust, copyright and privacy issues that are threatening to handcuff Google as it tries to build upon its dominance in Internet search to muscle into new markets.

“This opinion reads like a microcosm of all the big problems facing Google,” said Gary Reback, a Silicon Valley lawyer who represented a group led by Google rivals Microsoft Corp. andAmazon.com Inc. to oppose the digital book settlement.

Google can only hope that some of the points that Chin raised don’t become recurring themes as the company navigates legal hurdles in the months ahead.

The company is still trying to persuade the U.S. Justice Department to approve a $700 million purchase of airline fare tracker ITA Software nearly nine months after it was announced. Regulators are focusing its inquiry into whether ITA would give Google the technological leverage to create an unfair advantage over other online travel services. Google argues it will be able to provide more bargains and convenience for travellers if it’s cleared to own ITA’s technology.

In Europe and the state of Texas, antitrust regulators are looking into complaints about Google abusing its dominance of Internet search to unfairly promote its own services and drive up its advertising prices.

And Google is still trying fend off an appeal in another high-profile copyright case, one stemming from its 2006 acquisition of YouTube, the Internet’s leading video site. Viacom Inc. is seeking more than $1 billion in damages after charging YouTube with misusing clips from Comedy Central, MTV and other Viacom channels. A federal judge sided with Google, saying YouTube had done enough to comply with digital copyright laws in its early days.

One of my favourite comentators on Google is of course the one-and-only Siva Vaidhyanathan, who is quoted in this excellent Inside Higher Ed piece:

Siva Vaidhyanathan, a media studies professor at the University of Virginia and a notable Google gadfly, said the company overplayed its hand by essentially trying to rewrite the rules governing the copying and distribution of book content through a class-action settlement. “Google clearly flew too close to the sun on this one,” he wrote in an e-mail. “…This is not what class-action suits and settlements are supposed to do.”

Vaidhyanathan said that Google now faces the choice of either continuing to fight for its interpretation of copyright law in the courts or scaling back its plans for a digital bookstore. “If Google decides to take the modest way out, it can still ask Congress to make the needed changes to copyright law that would let Google and other companies and libraries compete to provide the best information to the most people,” the media scholar says. “Congress should have been the place to start this in the first place.”

 

 

 

 

Jenna Newman on the Google book settlement

In the 1st issue for 2011 of the journal Scholarly and Research Communication comes a masterful exploration of the cultural and legal issues surrounding the Google book settlement by Jenna Newman. At 75 pages, this monograph-length essay is probably the most comprehensive and certainly the most current exploration of the issues underlying this giant experiment in digital publishing.

It’s not really possible to sum up the entire essay, so I’ll just cut to the chase and quote from her conclusion, which firstly establishes in extraordinary detail just how good the deal is for Google:

If the settlement is approved, Google can congratulate itself on a particularly excellent deal. It avoids years of uncertainty, not to mention ongoing legal fees, in litigation. It avoids prohibitive transaction costs by not having to clear rights individually for the works it has scanned already and all the works covered by the settlement and yet unscanned. It will receive a blanket licence to use a broad swath of copyrighted works, and it will enjoy an exclusive position, both as a market leader and with legal peace of mind, in the realm of digital rights: its private licence goes much further than current copyright legislation, particularly with respect to orphan works, for which rights are currently unobtainable in any market. Low transaction costs and legal certainty are key requirements for any mass digitization or digital archiving project (McCausland, 2009). The settlement offers both, to Google and Google alone. It will be years ahead of any potential competitors digitizing print works and may easily end up with an effective monopoly and a leading stake in the emerging markets for digital books. And all this costs Google only U.S.$125 million—a mere 0.53% of its gross revenue, or 1.92% of its net income, for 2009 alone (Google Inc., 2010b)

Newman suggests that th deal is far more equivocal for publishers and authors, but that given the other options on the table (including the risk of a music-industry style failure to establish a viable digital publishing platform until after piracy has eroded much of the value of the market), it may represent the “best deal available.”

But the real implications are for copyright law and communications policy:

The settlement may serve publishers’ and authors’ individual or immediate interests even as it erodes their collective and long-term ones. The public, too, has a significant vested interest in the subjects of the settlement—the books themselves, repositories to centuries of knowledge and creativity—as well as the legal and cultural environment the settlement endorses. A detailed account of the settlement’s economic and cultural costs and benefits is instructive, but more importantly the settlement highlights the structural and technological deficiencies of existing copyright law. Long copyright terms and the presumption of total rights protection have created a copyright regime that privileges the potential for commercial exploitation regardless of whether that exploitation is feasible or even desired by the creators themselves. This regime is also particularly ill equipped to recognize digital possibilities. Whatever happens to this settlement, such tensions continue to strain copyright’s rules.

A number of conditions on approval could address criticisms of the settlement, but perhaps the best way to ensure Google, publishers, and authors are all treated fairly is to pursue copyright reform, not private contracts, to address the legislative problems that the settlement tries to engage. Legislative changes with respect to intellectual property rights have been slow to reflect everyday technological realities. The existence of the settlement, and much of its reception, demonstrates that private interests and public appetites are eager to move beyond the limits of the current regulations. Copyright reform will be fraught with challenges of its own, but the existing legal framework—in Canada as in the U.S.—is increasingly inadequate for accommodating common and emerging practices and capabilities: copyright law has swung out of balance. The settlement may serve as an early test bed for certain possibilities, including digital distribution and access, and the imposition of limited formalities on rights-holders. However, as a private contract, it is an insufficient guide for legislative development. The trouble with copyright does not affect Google alone. The public interest demands more broadly applicable solutions, and these will be achieved—eventually, and possibly with great difficulty—through copyright legislation. We may get copyright reform wrong, as arguably we have done in the past, but that fear should be allayed if we also recall that we have the power to revise our legislative interventions until we get them right.

 

Why AFACT’s piracy statistics are junk

Yesterday, the Australian Federation Against Copyright Theft (let’s call them AFACT or perhaps ‘Big Content’ for short) lost their appeal in the long-running and important copyright infringement suit against Australian ISP iiNet. As usual, some of the best commentary can be found by Stilgherrian (who really does need a second name, don’t you think?):

If you came in after intermission, you’ll pick up the plot quick enough. AFACT said iiNet’s customers were illegally copying movies, which they were, but iiNet hadn’t acted on AFACT’s infringement notices to stop them. AFACT reckoned that made iiNet guilty of “authorising” the copyright infringement, as the legal jargon goes. iiNet disagreed, refusing to act on what they saw as mere allegations. AFACT sued.

In the Federal Court a year ago, Justice Dennis Cowdroy found comprehensively in favour of iiNet. It was a slapdown for AFACT. AFACT appealed, and yesterday lost. Headlines with inevitable sporting metaphors described it as  two-nil win for iiNet.

But read the full decision and things aren’t so clear-cut.

One of the three appeals judges was in favour of AFACT’s appeal being dismissed. Another was also in favour of dismissal, but reasoned things differently from Justice Cowdroy’s original ruling. But the third judge, Justice Jayne Jagot, supported the appeal, disagreeing with Justice Cowdroy’s reasoning on the two core elements — whether iiNet authorised the infringements and whether, even if they had so authorised them, they were then protected by the safe harbour provisions of the Copyright Act.

There’s plenty of meat for an appeal to the High Court, and that’s exactly where this will end up going. Wake me when we get there.

As I argued today, also in Crikey, it’s ironic that Big Content seems to be about the only business lobby group in the country arguing for more regulation and red tape.

But the copyright case also comes in the wake of an interesting little micro-controversy about piracy statistics, released by AFACT late last week. Aided by an economics consultancy and a market research firm, AFACT released an impressive-seeming report that claimed that movie piracy was costing Australia $1.4 billion and 6,100 jobs a year.

Electronic Frontiers Australia made some pretty valid criticisms of the research, including the following:

1. The assumption that 45% of downloads equal lost sales is unproven and insufficient evidence is provided to support it. The survey method cited is better than assuming 100% of downloads are lost sales, but there is better analysis in other studies – for example this piece by Lawrence Lessig. If the study was correct, sales of DVDs and attendance at cinemas would be much more reduced than the reported industry figures. In fact, the movie industry is making record profits.

2. It can’t be ignored that downloads have an advertising effect both on the product downloaded and future releases. To the extent sales may be lost, these must be offset against other gains from advertising.

3. Gross revenue is not the relevant metric, due to variables such as investment in capital, distribution and costs of sales. Many of the movies downloaded may not have been available to view or buy in Australia. Profit is the metric of importance, but this is never studied.

4. Flow-on effects to other industries are wholly speculative, and lost tax on profits assumes the entities pay Australian company tax on sales pro-rata to revenue, which is not intuitive or evidenced. It also assumes that money not spent on movies is lost to the economy, instead of helping to create jobs in other sectors.

5. Peer to peer file sharing is merely the latest in a sequence of technologies since the 19th century which have been claimed to be the ruin of the creative arts. See chapter 15 “Piracy” by Adrian Johns (University of Chicago Press 2009) – the copyright owners said the same thing about copies of sheet music, tape recorders, every iteration of personal recording system and indeed public radio. However, “home piracy” acts not only as a loss to industry but also as a boon to distribution, bypassing censorship and limitations on sales by official outlets.

6. The report suffers, as have other industry-funded studies, from “GIGO”. With an assumption that “downloads = losses” unproven, all conclusions estimating the size of the loss are equally unproven. What if a vibrant sharing culture increases total sales for media respected as quality by consumers, but reduces sales of hyped media? (Research has shown that the biggest downloaders in fact spend more on entertainment than non-downloaders.)

7. The call-to-action of this report is obviously to “crack down on piracy”, shifting the cost of file-sharing from the industry to the taxpayer via increased law-enforcement. No industry, let alone the foreign-dominated entertainment industry, deserves a free ride for its business model. If instead, the industry noted that the report says 55% of downloads created a market for sales, much of which is unsatisfied due to current restrictive trade practices, then its future profitability would be in its own hands.

8. Repeated studies have demonstrated that the entertainment industry vies for money and commitment of time with all other forms of entertainment. The Internet, computer games and mobile telecommunication applications take “eyeballs and dollars” away from DVD and CD sales, but also sports arenas, sales of board games and printed works. Magazines are also suffering from a reduced value proposition with the Internet, and some forms of entertainment and some businesses in the industry will no doubt find it difficult to remain vibrant. Change is consumer-driven, and it’s futile for the industry to try to hold fast to a business model and methods of content distribution which are dying with or without fierce law enforcement of copyrights.

Unsurprisingly, AFACT  have responded, attacking EFA’s arguments.

Notably, AFACT replies that:

“The study does not assume that ‘downloads = losses’. As stated above, some 32 per cent of respondents said that they viewed an authorised version of a movie after watching the pirated version. As a result, 32 per cent of ‘all pirate views’ were removed from the ‘lost revenue’ calculations and were treated as ‘sampling’.”

This is a valid argument. AFACT has indeed removed these later viewings from their lost revenue calculations. But, as I’ll explore below, this doesn’t mean that AFACT’s methodology is sound.

AFACT’s other replies are far less persuasive. Take this line:

“It should be clearly noted that in almost all of these cases government or technology provided a barrier to prevent continued rampant infringement. In the case of public radio, legislation provided statutory copyright royalties. VHS and cassette tape may have been efficient technologies for recording, but in terms of cost and quality (analog degrades with time) they proved not to be efficient for distribution at that time. Laws were also designed to prevent mass distribution of pirated VHS tapes. Solutions, whether legislative, technological or otherwise are currently required to prevent or deter the unfettered digital distribution of pirated versions of copyrighted content.”

Not to put too fine a point on it, this is a rubbish argument. Statutory copyright royalties for broadcasters were not barriers to listeners – they were income streams to publishers. And, in fact, as EFA point out, radio proved to be such a powerful marketing tool for music labels that record companies regularly resorted to payola and other measures to get their songs on high-rating radio stations. This argument is a classic tautology: because AFACT believe that regulatory barriers are necessary to prevent infringement, they argue that the reason previous technologies didn’t lead to “rampant infrignement” was because they were strictly regulated. You don’t need a degree in logic to spot the flaw in this argument.

So who’s right?

On the whole, EFA has the better of the exchange. Indeed, there are plenty more holes you can pick in AFACT’s methodology if you wish. To start with, let’s examine their laughable “Annex 1″ in the full report. This purports to explain how ABS input-output tables are used to generate a final figure for total piracy impact in terms of lost sales and job losses.

I’d like to say I carefully checked their methodology for its econometric accuracy. Unfortunately, I can’t – because the authors at Oxford Economics and Ipsos don’t publish their equations; nor do they publish their raw data.

Just as an exercise, I downloaded the ABS input-output tables and attempted to match the ABS data to the AFACT report. It’s impossible. The data tables in the AFACT report which might allow that kind of scrutiny are missing.

What Annex 1 does tell us is that Oxford Economics and Ipsos have made all sorts of behind-the-scenes calculations to do with the exact value of the multipliers they use and the precise allocation of various ABS industry data to various categories of their assumptions. But they don’t tell us how these figures were arrived at. To get a flavour of the opacity of the modelling, here’s their full explanation of two of the the multipliers they use:

Type II multipliers of 2.5 (Gross Output) and 1.1 (GDP) were estimated. This covers activity in the Australian motion picture exhibition, production and distribution industries as well as TV VOD, internet VOD, downloads of motion pictures and the retailing of these motion pictures

There is no further explanation of how the numbers of 2.5 and 1.1 were “estimated” and no equation which shows us what they multiply. Hence, it is literally impossible to verify, cross-check or otherwise scrutinise these figures. Indeed, the full report contains no true methods section. In other words, the academic credibility of these figures should be zero.

This rubbish is just another example of how lobby groups use consultants-for-hire to create vocal scare campaigns based on fictitious figures. It’s junk modelling, ordered up for the express purpose of industry rent-seeking.

Crikey’s Bernard Keane explained it helpfully for us in relation to climate lobbying in 2010:

This what you do:

  1. Commission a report from one of the many of economics consultancies that have broken out like a plague of boils in the past decade.  This should feature modelling demonstrating the near-apocalyptic consequences of even minor reform.  Even if your industry is growing strongly, you should refer to any lower rates of future growth as costing X thousands of jobs, without letting on that those jobs don’t actually exist yet, and might never exist due to a variety of other factors.
  2. Dress up the report as “independent”, slap a media-friendly press release on the top and circulate it to journalists before release, with the offer of an interview of the relevant industry or company head.
  3. Hire a well-connected lobbyist to press your case in Canberra.  When the stakes are high, commission some polling to demonstrate that a crucial number of voters in crucial marginal seats are ready to change their vote on this very issue.

Subsidising paid digital content: cultural policy, French style

Ars Technica notes that:

France has decided to try something… novel. The country will attempt to prop up the digital music industry by subsidizing legal music consumption by young people. Under the initiative, citizens between 12 and 25 years old will be able to purchase a “carte musique”—a prepaid card  usable on subscription-based music websites. The card will come with €50 worth of credit, but customers only have to pay €25. The rest will be paid by the French government.

It is interesting to see a national government try a subsidy where out-and-out regulation has failed. But will it work?

Big record labels sue gyms and win big

Gyms that play copyrighted music in Australia are up for a big hike in their licensing fees. Image: Chicagonow.com

Today marks another victory in the inexorable legal campaign for more licensing fee revenue by big Australian record labels, led by their industry body, the PPCA.

As Bellinda Kontminas in The Age reports today, the Copyright Tribunal has ruled that gyms must now pay significantly greater royalty fees to labels for the right to play copyrighted music to exercising gym-goers:

The decision, handed down today by the Copyright Tribunal, means that fitness centres will be slugged $15 each class for the use of the music or $1 per attendee of each class.
Gyms had previously been charged 96.8 cents a class, with a cap of $2654 a year.
Fitness Australia said it was “disappointed” with the decision which it said represented a 1500 per cent increase in music costs for an average-size fitness centre.
Chief executive Loretta Stace said it was now reviewing the decision to determine whether there were grounds for appeal.
She said record companies had “shot themselves in the foot” as many fitness centres were already starting to use music that was not subject to PPCA copyright.
Susan Kingsmill, owner of Hiscoes Fitness Centre, said music artists would would now be disadvantaged.
“This decision will lead all fitness centres to seek more affordable music alternatives to the detriment of Australian performing artists, but the artists only have the record companies to blame for this.”

For those of you not aware of the background of this case, it stems from a similar suit brought by the PPCA three years ago against the nightclub industry, in which the big labels similarly won a massive royalty hike. I covered that decision, and the opaque governance structure of the PPCA, in an in-depth article for Arts Hub in 2007.  Representing around 75% of the recorded music industry by sales, the PPCA is effect a legalized cartel (like APRA, it even has a special dispensation from the Australian Competition and Consumer Commission in order to operate as a monopolistic collection agency).

The decision is something of a win for the big labels, who have run into serious troubles in the past decade owing to high debt loads, falling CD sales, rampant downloading and an industry shift towards touring and merchandise.  It’s also another example of the increasingly skewed nature of copyright law in Australia, which is now titled decisively towards copyright holders, like famous artists and big publishers, and away from rights-users, like libraries, schools and gyms.

Illegal downloading in Australia

A snapshot of illegal downloading in Australia. Source: CoreData/news.com.au

CoreData and news.com.au have teamed up to survey more than 7,000 Australian consumers about their illegal downloading habits.

While we don’t know the full methodology, the survey is one of the largest and certainly the most current snapshot of consumer behaviour in this field.

And, for those of us who have been following the technology-related troubles of the cultural industries since Shawn Fanning invented Napster, the results should not surprise:

Most people who illegally download movies, music and TV shows would pay for them if there was a cheap and legal service as convenient as file-sharing tools like BitTorrent.

[...]

The survey canvassed the attitudes of more than 7000 people who admitted to streaming or downloading media from illegitimate sources in the past 12 months.

It found accessibility was as much or more of a motivator than money for those who illegally download media using services like BitTorrent.

More respondents said they turned to illegal downloads because they were convenient than because they were free, when it came to all three types of media covered by the survey — TV shows, movies and music.

And more than two-thirds said they would pay for downloads from a legitimate service that was just as convenient if it existed.

The hypothetical legitimate service was described as giving users access to TV shows, movies and music they wanted, when they wanted them, without ads or copy protection.

This survey is more evidence, if any more were needed, that the key barrier to a paid content future remains industrial competition and the strategic errors of big cultural businesses, rather than the rampant illegality of ordinary consumers.

Of course, some will protest that consumers are simply lying in such a survey.  But a more convincing explanation is that the cultural industries are yet to give consumers exactly what they want, and that this explains the slow uptake in digital content payments. It’s also another example of the problem of rivalry and excludability in the content industries: compare the prices Australian consumers say they are prepared to pay for downloaded movies (approximately $2 dollars) to the average admission price of a cinema ticket here (as high has $17 for a first-release movie). You don’t need an MBA to see the revenue gap there.

Can studios and record labels make money on prices like these? Of course they can, especially if new business models are created. But that’s not what Big Content will tell you. They’ll use data like this to lobby for more stringent industry protections, in the form of draconian copyright legislation and other anti-competitive regulations.

More commentary on the iiNet case

In New Matilda, Raena Lea-Shannon has an excellent summary of the arguments and judgement in the movie studios vs. iiNet case over internet piracy:

In order to prove the studios’ case, it was necessary to show firstly that there had been infringement by users, and secondly that iiNet’s failure to do anything about the notices amounted to authorising the illegal conduct of the users. While the Court was satisfied that the detailed forensic evidence showed that a number of users of iiNet’s service had infringed copyright regarding a number of the studio’s films, it found that the notices were by no means conclusive in all circumstances or easy to decipher:
“Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgement in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system.”
The Court also remarked that these notices were not verified as an affidavit or a statutory declaration would be.[...]
In making this argument, one of the main cases upon which the studios relied was the Kazaa case, in which it was found that the operators of the Kazaa file sharing software had a vested interest in illegal downloading, and further, that despite the fact that not all activity using Kazaa was illegal, it was predominantly illegal file sharing.
In that case, the Court also took into consideration the exhortations made by Sharman Networks, the operators of Kazaa, to its users to join the “revolution”, that is, the illegal file sharing revolution. The studios argued that iiNet was no better than Sharman Networks, and that the entire internet was as much a hotbed of piracy as was Kazaa’s file sharing network; iiNet was letting its users get away with daylight robbery.
Justice Cowdroy considered the key cases governing this idea of “authorisation”, and while acknowledging some differences in their reasoning he drew from them what he considered to be the underlying principle of authorisation of infringement. Authorisation, he concluded, requires the authoriser to provide the means of infringement.
In another key precedent, the 1975 Moorhouse case,  the University of NSW Library was found to have authorised an infringement by providing the photocopiers used to do the infringing; in the Kazaa case Sharman Networks provided the file sharing software.
However, Justice Cowdroy found that in this case the means of infringement was the BitTorrent system of file sharing — not the entire internet — and while iiNet made access to the internet possible, it had no control over how its users obtained and used BitTorrent and shared the studios’ copyright. “iiNet,” he concluded “has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.” To press home the point and to conclusively distinguish these circumstances from the Kazaa case, he said:

“While the Court expressly does not characterise access to the internet as akin to a ‘human right’ as the Constitutional Council of France has recently, one does not need to consider access to the internet to be a ‘human right’ to appreciate its central role in almost all aspects of modern life, and, consequently, to appreciate that its mere provision could not possibly justify a finding that it was the ‘means’ of copyright infringement.”

Two important Australian copyright cases: BitTorrent all you like, but don’t borrow a flute riff

It’s been a big week for Australian copyright law with two important cases decided.

First up we had the case of iiNet versus Roadshow Films. This case   saw mid-sized Australian ISP iiNet sued for by a federation of Hollywood movie studios and local broadcasters for copyright contraventions by its users, chiefly on BitTorrent. The case was always expected to have wide ramifications, as it called into question whether ISP’s would be responsible for the rampant illegal downloading of their users. The movie studios hired private detectives to track user downloads and then informed iiNet about the activity.

When iiNet refused to disconnect users, they sued, arguing thata iiNet had a legal obligation to stop users from illegal activity.  iiNet argued that it had no legal right under privacy law to snoop on what its users were doing,, and that in any case BitTorrent can be used for many legitimate activities.

iiNet won. In his judgment, Justice Cowdrey comprehensively demolished the Big Media case. “I find that iiNet did not authorise the infringements of copyright of the iiNet users,” he wrote, going on to point out that even if iiNet had done so, it would still “have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.” Translation: not only did iiNet not authorise the illegal downloading, it also enjoyed the “safe harbour” protections of the Copyright Act like any other ISP or telco. It’s a comprehensive slap-down for the copyright lobby.

And then there was the plagiarism case concerning Men at Work’s famous 1981 song “Down Under.”

This is one of the most famous songs in Australian contemporary music, selling millions and reaching No.1 in both US and Australian charts. I  vividly remember hearing it played endlessly as a child when Australia won the America’s Cup yacht race in 1983, for which it had become a kind of de facto national anthem.

The case involved the publishers of a song entitled “Kookaburra Sits in an old Gum Tree”, a well-known children’s ditty penned for the Girl Guides in the 1930s b y a woman named Marion Sinclair. But afteer Ms Sinclair’s death, the song was bought by music publisher Larrikin Publishing, who then sued in 2007 after the similarity in the two songs was noted in an ABC music quiz show, Spicks and Specks.  In a canny piece of copyright trolling, Larrikin argued that the flute riff in “Down Under” included two bars of the melody of “Kookaburra”, and that Larrikin was therefore owed a substantial part of the publishing and songwriting royalties of the hit song.

Now songwriter Colin Hay and publisher EMI stand liable for millions in back-royalties.

In a statement yesterday, Hay slammed  the decision, stating that:

“It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of ‘Kookaburra’ on the flute, during live shows after he joined the band in 1979, and it did end up in the Men at Work recording.”

“It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song ‘Kookaburra,’ and she wrote it, and was most definitely alive, when Men at Work’s version of ‘Down Under’ was a big hit. Apparently she didn’t notice either.”