Yesterday, scholars at the Mercatus Center unveiled a new website entitled PiracyData.org. According to the site’s co-creator Jerry Brito, the purpose of this webpage is to determine whether the most-pirated movies each week are available for legal streaming, digital rental, or digital purchase. To accomplish this goal, the site combines TorrentFreak’s weekly top-ten list of the most pirated movies with Can I Stream It’s database of movie availability.
In light of the demonstrated unreliability of the site’s data—something Mr. Brito concedes—no conclusions or even sensible speculations can be drawn from PiracyData.org. But, one meaningful question to ask is why is a data set of this type is even relevant to the piracy debate in the first place? Mr. Brito’s reasoning is plain enough: because the movie industry’s business model is “seemingly in tension with consumer demand“, the industry deserves what it gets in terms of piracy. According to Mr. Brito,
while there is no way to draw causality between the fact that these movies are not available legally and that they are the most pirated, … it may well be within the movie studio’s power to change those results by taking voluntary action themselves. That is, they could make more movies available online and sooner, perhaps by collapsing the theatrical release window.
This “blame the victim” mentality is nothing new to the digital piracy debate and it entirely misses the point: intellectual property is property. When you own property, you get to decide when to sell it and under what conditions you sell it. My house is not for sale, but that doesn’t give someone the right to take it from me just because they want it now.
Copyright law extends the concept of the property right to ideas and other intellectual creations. Property rights are the foundation of a market economy, and Copyright law (and its enforcement) in the United States is founded on the Constitutional goal of “promot[ing] the Progress of Science and useful Arts” by providing exclusive rights to creators. Of course, that exclusive right comes with privileges. If a content creator wants to sell their intellectual property right or withhold it from the market, then that’s their privilege. If the content creator wants to sell their intellectual property right now or sell it later, then that’s also their privilege. And, if they want to sell their intellectual property right at a high price or a low price, well then that’s their privilege too.
Sensible policymaking must focus on these fundamentals. If Mr. Brito doesn’t believe that ideas and creations are property, then he needs to make his position clear. We can debate about the consequences of eliminating intellectual property on the availability and use of intellectual creations. If Mr. Brito believes that ideas are property, then the debate turns to optimal enforcement. If enforcement is the issue, then we can argue about, for example, whether placing liability on search engines for piracy is an efficient enforcement option. Plainly, the assignment of the right and the enforcement of the right are two distinct issues. The “blame the victim” position could easily fit into either category—so Mr. Brito needs to be clear about his position when he places blame.