Infringement is Coming: Game of Thrones and IP

Today is going to be a policy day.  Time Warner CEO Jeff Bewkes recently made an interesting comment regarding the show Game of Thrones on HBO (a Time Warner subsidiary).  Bewkes said that Game of Thrones status as the most pirated TV show of 2012 was, in some respects, “better than an Emmy” because piracy generated “tremendous word-of-mouth.”  Bewkes is not the only Game of Thrones creator to think along those lines (author George R.R. Martin and director David Petrarca have made similar comments).

As someone who grew up reading about various court actions against people who downloaded music and movies, it’s interesting to see the head of a major media company make statements shrugging off the effects of copyright infringement.  There is no doubt in anyone’s mind that downloading episodes of Game of Thrones violates HBO’s ownership rights, particularly their right to make and distribute copies of these aforementioned episodes.  Bewkes here focuses less on his legal rights and more on how to profit from his company’s copyrighted work.  Bewkes lays out his logic very simply: they get more HBO subscribers from making quality television, and people downloading the episodes illegally helps get the word out about particularly good shows.  HBO appears to profit greatly from this strategy: total revenue is up 7%, with operating revenue is up 13%, this past quarter.  Game of Thrones, given its cultural cache, likely has a lot to do with that growth.

This news shouldn’t be particularly stunning, but Bewkes’ views on infringement are a nice shift from other media executives’.  For the longest time, a number of lobbying organizations (such as the RIAA and MPAA) argued that every illegally downloaded song, game, or movie represented a lost sale (and based their loses due to infringement accordingly).  This has never been entirely true, since there was always a set of people whom (for one reason or another) never intended to pay for the content.  The other issue is that, unlike normal theft, copyright infringement does not deprive the owner of the value of the property.  The owner still maintains possession of the copyrighted work and can still profit from it despite infringement.  This is in contrast to theft of physical property, which entirely deprives the owner of the property’s value.  It’s nice to see a person in Bewkes’ position acknowledge that illegal copying can promote a show in the right circumstances.  HBO almost provides a case study in such issues, since the number of legitimate points of access for their shows is minimal.  If you don’t have cable (or live in certain countries), obtaining legal access to Game of Thrones episodes is difficult.

Fortunately, the advent of streaming media services such as Netflix and Hulu makes providing legal avenues for customers relatively easy.  These services remain, in my opinion, severely underutilized by content owners.  Content owners are reluctant to place newer content on any of these services without some kind of caveat (such as a significant delay between the air date and the date available for streaming) that creates an opening for less legal means of viewing.  HBO actually manages this fairly well with their own streaming service, HBO Go.  Go makes content airing on HBO available almost immediately (usually within five or 10 minutes).  The subscriber never has to worry about missing Game of Thrones, because they can always stream it if they cannot view the television airing.

It should be interesting to see how other media providers respond to Bewkes’ comments.  In the meantime, I’ll wait patiently for Game of Thrones Season 4.

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