The Second Digital Disruption: Data, Algorithms & Authorship in the 21st Century

68 Pages Posted: 8 Aug 2018 Last revised: 23 Aug 2018

See all articles by Kal Raustiala

Kal Raustiala

University of California, Los Angeles (UCLA) - School of Law

Christopher Jon Sprigman

New York University School of Law

Date Written: August 5, 2018

Abstract

This article explores the intellectual property ramifications that flow from the explosive growth of mass streaming technologies. Two decades ago rising internet usage led to what we call the first digital disruption: Napster, file-sharing, and the transformation of numerous content industries, from music to news. The second digital disruption is about the age of streaming and, specifically, how streaming enables firms to 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, Amazon, and Apple to know in incredible detail what content consumers like and how they consume it. The leading edge of this phenomenon—and the primary vehicle for our examination—is the adult entertainment industry. We show how Mindgeek, the little-known parent company of Pornhub and the dominant player in pornography today, has leveraged data about viewing patterns to not only organize and suggest content 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 IP by restructuring and recasting revenue streams. We then show how content streaming firms have used data to make decisions about content aggregation, dissemination, and investment. Finally, we consider what these trends suggest for IP theory and doctrine. A key feature is that by making creative production less risky, what we call “data-driven authorship” drives down the need for strong IP rights.

Keywords: copyright, IP, intellectual property, streaming, competition, piracy, authorship, pornography, netflix, amazon, apple, innovation, disruption, technology

Suggested Citation

Raustiala, Kal and Sprigman, Christopher Jon, The Second Digital Disruption: Data, Algorithms & Authorship in the 21st Century (August 5, 2018). UCLA School of Law, Public Law Research Paper No. 18-28; NYU Law and Economics Research Paper No. 18-30; NYU School of Law, Public Law Research Paper No. 18-41. Available at SSRN: https://ssrn.com/abstract=3226566 or http://dx.doi.org/10.2139/ssrn.3226566

Kal Raustiala

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-794-4856 (Phone)

Christopher Jon Sprigman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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