Prof. Doug Lichtman, UCLA School of Law
February 9, 2015
I have been making the rounds the last few weeks, talking with bar organizations and student groups about the most important patent and copyright moments of this past year. My standard talk touches on some familiar cases, like the Supreme Court’s Aereo decision, or the still-ongoing litigation involving Google and Garcia. But my talk also bucks convention in that I spend at least half of my time talking about things other than cases. My view, after all, is that many of the truly interesting and important events in copyright and patent last year did not take place in courtrooms and did not involve litigators. Instead, those key events were moments like when Taylor Swift’s business team decided to part ways with Spotify, or when CBS bravely launched its surprisingly complete online presence.
One of the events I highlight, however, initially seems relatively tame. It is the launch of a beta website called www.wheretowatch.com. The concept of the site is simple. A user can click to the website; type the name of any movie, television program, actor, or director; and then quickly scroll through a list of legal sources for the content. A quick search for the television program “The 100,” for instance, reveals that current episodes can be streamed on Target Ticket, iTunes, XBox Video, and several other sources. A search for “Buffy the Vampire Slayer” similarly confirms that Ms. Summers is still staking the bad guys on Amazon, Vudu, Hulu, and more. The where-to-watch website even shows prices for each service and provides links such that a user can travel to the chosen service with just one click.
So why is this exciting? One of the big challenges facing the content community is that users do not know where to turn for legal content. Think of a movie like “A Beautiful Mind” or “The Giver.” Any idea whether those films are available on iTunes, Amazon, or Netflix? Hard to guess. But one thing is a certainty: “A Beautiful Mind,” “The Giver,” and even “The Muppets Take Manhattan” are available at all the major illegal sites, ready to be streamed immediately.
The implication here has been that illegal content was in this way better than legal content. That is, illegal content not only had the advantage of being free – an advantage that can be overcome as applied to a large portion of the market, filled with people who are happy to pay reasonable prices for the content they love. It also and perhaps more importantly had the advantage of being easier to find. The new where-to-watch website reduces that advantage, making legal content an even more compelling competitor to illegal fare.
This ironic situation of illegal content being better than legal content is in fact a common challenge facing many content sectors. Consider the adult content industry. Websites that host legitimate adult content have a significant drawback: Their owners want to earn money, and so at some point those sites have to ask customers for names and credit card numbers. Customers understandably do not like to give that information up, however, and that simple fact constrains the market for legal adult content. Websites with illegal copies of adult films, by contrast, do not labor under this constraint. The illegal sites tend not to ask their users for identification; they simply give access to the stolen content in exchange for advertisements. Thus, here again, illegal content is, in a way, better than the legal equivalent. To the extent that the films are the same, the illegal sites offer the advantage of not only being free, but also being anonymous. And that is a big problem for legal competitors.
The where-to-watch website thus strikes me as a particularly worthy entry in the list of 2014’s most important intellectual property achievements. It is a simple idea, presumably built easily from datasets held by the various content companies, but it might well be an important step toward equalizing the convenience of legal and illegal video content.