Intellectual Property, Big Data, and Streaming: Porn and Beyond

Profs. Kal Raustiala & Chris Sprigman will be guest-blogging about this week, based on their new law review article.

I'm delighted to report that my colleague Prof. Kal Raustiala (UCLA School of Law) and Prof. Chris Sprigman (NYU School of Law, Co-Director of the Engelberg Center on Innovation Law and Policy) will be guest-blogging this week about their new article, The Second Digital Disruption: Data, Algorithms, and Authorship in the 21st Century, which they've just circulated to the law reviews. Here's their quick summary:

"The Second Digital Disruption: Data, Algorithms, and Authorship in the 21st Century" explores the intellectual property ramifications of the mass content streaming platforms like Netflix, Amazon Prime, Spotify, and perhaps the biggest mass streaming platform that no one's ever heard of—MindGeek, which rules the massive market for adult entertainment.

Two decades ago we experienced the first digital disruption: our shift to digital technologies, and the consequences for content industies: Napster, file-sharing, and the transformation of markets for copyrighted content from music to news. Now, the growth of streaming platforms is ushering us into the second digital disruption. At the heart of this next re-ordering are powerful firms that harvest massive amounts of data about consumer preferences and consumption patterns. Coupled to powerful computing, this data—what Mark Cuban has called "the new gold"—allows firms such as Netflix and Apple to know in incredible detail what content consumers like and how they consume it.

We see the leading edge of this phenomenon—as we do often do—in the adult entertainment industry. In the article, we show how Mindgeek, the parent company of Pornhub and the dominant player in pornography today, has leveraged data about viewing patterns to not only organize and suggest content (as firms such as Netflix do) but even to dictate creative decisions.

We first show how the adult industry adapted to the internet and the attendant explosion of free content. That story aligns with many similar accounts of how creative industries adapt to a loss of control over intellectual property by restructuring and recasting revenue streams. We then show how Mindgeek, Netflix, Amazon, and other firms have used data to make decisions about content aggregation, dissemination, and investment. Finally, we consider what these trends suggest for intellectual property theory and doctrine. A key feature is that by making creative production far less risky, the phenomenon that we call "data-driven authorship" weakens the case for strong intellectual property rights.

Kal and Chris are also coauthors of The Knockoff Economy: How Imitation Spurs Innovation (Oxford University Press 2012).