David Hornik, a smart lawyer-turned-VC friend of mine who teaches a class on Intellectual Property and Business at Stanford Business School, recently gave his students an interesting assignment: Consider the apparent contradictions between the Long Tail and the work of Stanford law professor (and Wired columnist) Larry Lessig in the context of advising Congress on the future of copyright law.
Good question. Let me take a whack at it myself.
I've noted before that some have spotted a conflict between Lessig and the Long Tail. Specifically, Lessig argues that most creative work doesn't have value for long and doesn't need as much protection as it gets. The Long Tail, in contrast, argues that as the limitations of shelf space diminish and older content is kept available we are finding that demand continues for longer than we thought.
In Free Culture, Lessig writes (page 225):
Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative work. For that tiny fraction, the copyright acts as an “engine of free expression.”
But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. As I’ve indicated, most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends.
Contrast that with The Long Tail:
You can find everything out there on the Long Tail. There's the back catalog, older albums still fondly remembered by longtime fans or rediscovered by new ones. There are live tracks, B-sides, remixes, even (gasp) covers. There are niches by the thousands, genre within genre within genre: Imagine an entire Tower Records devoted to '80s hair bands or ambient dub. There are foreign bands, once priced out of reach in the Import aisle, and obscure bands on even more obscure labels, many of which don't have the distribution clout to get into Tower at all.
So Lessig says the commercial life of creative work is short. The Long Tail says it is, well, long. Lessig concludes that copyright is overprotecting stuff that doesn't need it, since it doesn't sell anymore. What does the Long Tail say about that?
On the face of it, it really does seem to disagree. I've argued, for instance, that the concept of "out of print" is anachronistic and will soon go away. Even worse (for the not-worth-protecting argument), I think the availability of archive content could lead to a real boom in new content as it attracts/creates a generation of remixers and others who can find ways to find new value in old wine. More content available + more people who want to do stuff with content = more commercial potential. Whether you like copyright or not, it's no longer safe to say that it's irrelevant for older material.
But there's another way to look at this that offers a neat bridge between the two views. Many of those extracting new value from old content are not the original creators or rights-holders. Some of them are repurposing older material, and others are aggregators who have found ways to find new markets for material that's fallen beneath the commercial radar. Either way, they typically aren't the original record label, film studio, publishing house, TV production company or any of the other names that might be on the copyright declaration. They are someone else, probably someone entirely unexpected. This is, after all, the dawn of Remix Culture.
What's changed is the presumption that the primary rights-holder is the best at extracting the commercial potential of creative material. Instead, anyone can do it: the advertising company that remixes an old movie to sell a car; the Linux t-shirt done Warhol-style, or just plain old DJ magic. What you need to encourage this multiplicity of commercialization potential is tiered alternatives to one-size-fits-all copyright, from allowing derivative works (good marketing!) to shorter terms for the sake of the remix-culture social good. I can't think of a better example of that than Lessig's own Creative Commons, which has already become the license of choice for the right side of the Tail, where the commercial imperative is less all-consuming.
So, bottom line: the Long Tail ends up in the same place Lessig does, but via a different path--the diversification of commercial potential rather than the absence of it. I hope that the hypothetical Member of Congress to whom Hornik's students were addressing their arguments can see the big picture. The shelf life of creative works may be growing, but so is the social cost of locking them up at the sole discretion of the primary rights-holder.
At the same time, I'm delighted to see that more and more content producers are discovering the appeal of voluntarily renouncing some of their statutory copyright protections (which is what adopting a Creative Commons license does) to encourage their work to take on a life beyond that they originally intended. The Long Tail is full of such cross-fertilized fare. We don't yet know how the money will eventually flow through this collaborative network, but it's clear that without more flexible intellectual property rights, it won't flow at all.