Long Tail vs. Lessig

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.

Comments

[David Hornik]

Even with my forced curve, I'd give you an H (Stanford B-School's grades are H, HP, P, LP and U)! Of course, now you've made it impossible for me to give the same essay question next year. I hope you'll write something equally thought provoking by next year so that I have new fodder for the essay mill.

[David Hornik]

Even with my forced curve, I'd give you an H (Stanford B-School's grades are H, HP, P, LP and U)! Of course, now you've made it impossible for me to give the same essay question next year. I hope you'll write something equally thought provoking by next year so that I have new fodder for the essay mill.

[Kristin Thomson]

Hi Chris

There's a very relevant article in today's Washington Post.
Downloading: The Next Generation. http://www.washingtonpost.com/wp-dyn/articles/A59632-2005Feb28.html

The article mentions the value of deep catalog, something that seems to have surprised both the creators of digital music services and the major labels that license the copyrighted material.

Excerpt:

[...] "And contrary to what some online music executives believed at the outset of the pay-to-download business, the depth of the catalog has a direct impact on business. In a 2003 interview, RealNetworks' Wolpert questioned the need for a digital service to have millions of tracks in its catalog, saying, "Eighty to 90 percent of the songs people download [on free services] are the same couple hundred songs."

After nearly two years of watching his own customers, Wolpert jettisoned that supposition. "Catalog does matter," Wolpert said, noting that the company's customers download 90 percent of RealNetworks' million-song catalog every month. That monthly figure remained steady even as the company doubled its catalog.

"In digital there is a 'long tail' of tracks that will sell," Sony's Hesse said. "There is a great opportunity here to go even deeper in the catalog. People will actually find this stuff." Added EMI's Cohen, "The whole promise of this unlimited digital shelf is playing itself out." [...]

[Kevin Laws]

The two also don't need to contradict each other on the face of it. The sum total of the items in the tail is so large that you could double sales in the tail, and the value to each individual piece of content wouldn't change much. The whole point of the Long Tail piece is the aggregate of those little sales, not that each one increases to being of significant value.

Also (though this gets more complex for the masses), by the time you throw in any real discount rate, the far out years really don't provide much additional incentive to produce (almost) regardless of how big they get.

[Francis Hamit]

I've commented about this elsewhere: on my own "The Fight For Copyright" blog, in Lessig's blog, and Joi Ito's and Jerry Pournelle's, not to mention the occasional letter to the editor. I have copyright infringement cases against publishers in progress for ripping off electronic rights they never owned.

This has required me to do a lot of research. Lessig's assumptions about the value of a copyright are deeply flawed and actually favor big media over small producers. There is a healthy aftermarket, which makes billions of dollars per year, for old magazine articles. The firms that collect and distribute these, by the million, are called "aggregators". Their primary customers are large database firms that sell primarily to public and other libraries around the world, and to corporate intranets (which are required to pay for such materials because they use them commercially).

This is a prime example of The Long Tail in action. The question then becomes what is any one article worth? I obtained some usage records for one of these databases from my local public library, which pays several thousand dollars a year for a collection of about 25 million articles. Divided over the entire population of potential users, the subscription fee looks like a real bargain. It costs about four cents each per year.

However, divided by the number of articles actually downloaded and used, it comes to about $1.65 each, and I suspect that the subscription fee will rise if usage goes higher. The library does not promote the service very much, probably for that reason. Most of it is, or was, paid for by Federal funds anyway.

Now the real problem here is that the authors of those articles get nothing. The aggregators deal with the publishers who claim to own the copyrights, even when they don't. The revenue stream gives them between 30 and 70 percent of the gross, depending on the deal they are able to make.

Multiply that library by 16,000 in the USA and Canada and then add in the other hundred or so nations where these databases are sold, and you begin to see the dimensions of the problem.

From my own publishing of my old articles online, I can tell you that no one of them sells lots of copies in a given month, but that most of them sell a few. You have to have a certain mass of product to make it worth doing. But since it is all electronic and virtual, you can meet all demands. The only question then is price, and I've concluded that price does not drive sales in this instance. If you want the product you will pay any reasonable price. If you don't want it, you won't download it, even if it is free. (The public library databases are "free" to the patrons, even online.)

Everything I publish was previously published in a print magazine or journal. There is an aftermarket, as the aggregators have proven. Their distribution covers every channel, paid or unpaid. I suspect that none of it sells very much, but the total sold is massive.

In other words, these guys knew about The Long Tail years ago.
There is a copyright infringement class action suit against them in binding arbitration, but who knows when, if ever, it will be settled?

Francis Hamit

[Eric Goldman]

I feel like I'm missing something because I don't see any conflict between Lessig's position and the long tail. The problem is that commercializing copyrighted works has historically been costly: there is the cost of making, moving and storing the physical media plus the cost of marketing the works. The online world lowers or effectively eliminates both costs. There's virtually no marginal costs from throwing copyrighted works onto a server and selling them through a pre-built e-commerce engine, and the marketing is done through recommendation lists, search engines and other techniques that don't require out-of-pocket upfront investments. (There may be license clearance costs--see http://www.wired.com/news/print/0,1294,66696,00.html). With these lower costs in the digital environment, legacy copyrighted works might become profitable to distribute where they weren't profitable before. We should learn more about this as media companies rethink their attitudes about digital distribution.

Eric.

[Francis Hamit]

Actually, Eric, that is my experience. I only publish my own stuff right now because I don't have to negotiate with myself and I have about half a million words to work from of previously published articles. LSI waived set-up fess, so while there is labor in preparing electronic files, once they're on the system, that's the end of it. Every copy sold produces revenue. Figuring out what will sell? Well, that's still something we're experimenting with. The only thing I know for sure so far is that having a lot of titles works better than just a few.

For what it is worth, our best sellers so far are the bundle about precision farming and agricultural intelligence, the article on how bad telephone manners affect sales and the bundle about about virtual museums. There doesn't seem to be a common theme.

My point is that, without copyright protection, none of it would be worth doing. I have no problem paying for distribution and secure delivery of product. It's a fair deal.

[Mark Wubben]

What you are forgetting here is that Creative Commons licensing can help in the marketing of Long Tail works. For example Steven Garrity does an online radio show named Acts of Volition Radio which in Session Two played a song by Jellyfish. Now Jellyfish happens to be a band from the early nineties, and I don't believe they are very well known now. Therefore, you could classify them as belonging to the Long Tail.

The thing is, because they were in that session, I discovered them and I recently bought two CD's by them. Had their music been CC-licensed, it would have been legal to create that radio show, and I would still have used the Long Tail to buy their music.

Also, the online store were I bought it probably had this somewhere in their warehouse. The money for the CD's was payed to Jellyfish a long time ago already. So, the actual revenue maker from this purchase is the online store, right?

Creative Commons and the Long Tail can go hand in hand, even if it's just for marketing.

(And yes, I know I've made some generalizations of the CC-license here.)

[Francis Hamit]

Mark, I am doing something similar. I'm a Google Print partner and most of our titles will go live shortly, allowing people to access twenty percent of the text. This kind of smapling is a well known marketing technique. Debbie Fields discovered it the first day she opened her first cookie store. No one showed up, so rather than just throw away the cookies she had made, she walked down the mall , handing out free samples. That brought people in to buy.

What she did not do was give away everything in the store. I tested the notion that people will download an entire article and then pay for it out of the goodness of their hearts with a reprint fo an interview I did with Frank Zappa in 1970. Zappa still has a pretty big fan base, but since I was in the US Army when I did that interview and it was for a US government publication, it can't be copyrighted. It IS in the Public Domain.

It sold a few copies until people figured out they could copy it and give it away without penalty. Since then, nothing.

The library databases make article freely available, but with that kind of non-fiction, the value is the information, not who wrote it. All that distribution does is deprive the authors of those articles the opportunity to sell it themselves. If the work was originally done on an "all rights" or "work for hire" basis, then copyright is not an issue. However some of it was done on a first rights print basis only and simply stolen by the original publishers, who do get a revenue stream from electronic rights. This was the basis of the Tasini litegation, and my own.

The really obnoxious part of this is that the publishers routinely claim to own the copyright. That, too, is a violation of the Copyright Act.

My point here is that Creative Commons is a matter of choice of the creators. It is a voluntary offer of a contract, not a requirement of the law; nor should it be.

There are other ways to accomplish the same goals.

[Jason Coleman]

Perhaps I'm missing something here, but I don't know that Lessig (or anyone, for that matter) are implying that Creative Commons license be made "law." They are a tool for authors to use to opt out of currently protective copyright law. If one favors having copyright law that is protective of authors, than I would think having this opt-out (as opposed to an opt-in law, of course) would be ideal. While obviously, many of us feel very positive and strongly about Creative Commons as a good thing, no one is trying to completely replace copyright law (at least not in the U.S.). This is just a way for authors to waive certain rights, which can be a good thing.

[Mark Wubben]

Francis, personally I want to have the atoms: I don't want to pay for music downloads because I want to have the CD's. In that view, a CC-license on music will work for me. But that's just me, I'm sure a lot of people would just download the music and be done with it.

(I was seriously tempted to buy the Wired issue which carried the Creative Commons CD, by the way.)

Something interesting happened today which is partly related to this discussion. I sent a friend of mine three songs by Jellyfish (see above). That consitutes file sharing, and he's getting a copy, so it's not fair use (please correct me if I'm wrong). The thing is, he loved the songs so much that he immediately ordered the two CD's which are (still) avialable. And this way of sharing music was the only way for me to let him get to know Jellyfish: he lives in Lancashire, UK and I near Rotterdam, the Netherlands.

Where does this fit in, legally speaking? (Apologies if I'm straying too far off topic here)

[Francis Hamit]

We do seem to have a situation where consumer desires and the law are in direct conflict. That usually makes for bad law.

The problem with copyright law is that it is a matter of treaty, not just our local law. It is global and we are bound to honor the treaties we have signed. You can't change the law in the way people usually propose, without changing the entire structure of treaties.

The point I've tried to make repeatedly, above and elsewhere, is that we already have the means of fairly rewarding creators. The primary force that prevents it is not the law, but simple human greed.

The mechanism used with music for years has been the compulsory license and fees set by tribunal. Expanding that beyond music is one means of making sure that creators get paid (something, anyway -- there will still be cheats) and consumers pay.

Creators don't expect to be paid for every shred of an edition. Not in money, anyway. Sampling is permitted. It does encourage some people to buy.

But what happens far too often is simply theft on a grand scale. Mostly these have been contract disputes, such as the suit over "Lord of the Rings" film royalties that was filed today.

In the virtual world, however, a theft, even an unintentional one, can damage not just immediate profits but any hope of future revenues.

One problem is that some publishers and other distributors failed to understand, perhaps deliberately, that they did not own every right attached to an intellectual property. They sold what they did not own and relied upon their economic power and creator's timidity and/or ignorance of the law to shelter their ill- gotten gains. They've mostly gotten away with it, so far. The Tasini case aside, there have not been many successful legal actions to enforce creator's rights. The main reason is cost.

Creative Commons may be an option, but I predict it will cause more problems than it solves, because someone, somewhere, will misintepret the terms of the license to go beyond the boundaries set by a creator. This will happen, most likely, with derivative works.

The important thing to recall is that these disputes are always about the money.
If it were not for someone making money that belongs to someone else off the infringement, no one would bother to protest.

So when someone takes your short story for which you have issued a CC license and makes it into a film or a book without so much as a "by your leave" much less a fair payment, remember this.

To give you an idea of the pernicious impact of distributing something without permission, let me cite the following.

My share of a paid copy of one of my less expensive articles is 88 cents. How many have been downloaded from library databases by people who thought they were free? A hundred? A thousand? They've been available that way for years. You can do the math as well as I can.

Or is the proposition that it all should be free? If so, then the law and the treaties all have to be changed. And if we do that, how are creators such as myself suppossed to live?

This is my business, not my hobby.

[Rafael Venegas]

How long works of art have commercial (economic) value? It depends on the work. At some museums and stores, reproduction of primitive, biblical or renaisance art is still sold sucessfully. On the music side, the Beethoven symphonies are still big seller. So is the music of Chopin. And let us not forget the works of Shakespeare. The suggestion that these works have no commercial value is wrong, when in fact they have more commercial and artistic value than any same type works being produced today.

Surely very old works have no economic value for their dead authors. But they are still of great value for those that enjoy and sell them.

[Jonas]

There is much confusion here.

"The Long Tail" means that given a cheap distribution model and a large enough inventory, the aggregated sales of the fringe products suddenly gets large.

In other words: No one thinks fringe or impopular products will suddenly get popular -- only that if you have enough of them the accumulative effect gets important. Or: You can survive selling niche stuff if you have a really large inventory. The niche garage band will still only sell five records.

What does this have to do with the need for a shorter copyright? The only thing I can think of is that maximizing the distribution is more important than ever, and shortening copyrights can be one of many means to that end.

Longer copyrights would solve nothing.

[Chris]

Jonas,

Items don't have to be popular to have a commerical life. The first step of the Long Tail is availability--infinite shelf space--which is now increasingly becoming the case in entertainment media. Once things that were not available become available and stay available longer, we see that demand for them continues for longer than we thought. That's where the copyright implications come from.

[Francis Hamit]

A follow-up on Lessig: He has proposed a renewal plan where copyrights would expire if a fee of one dollar were not paid. We had a similar scheme under the 1909 Copyright Act. Lots of copyrights were lost because the paperwork was not filed on time. It was done away with in the 1976 act and many of those copyrights were restored.

Putting aside that one dollar does not cover the adminstrative costs, such schemes are impediments to copyright and not permitted under the Berne treaty.

So, it would not be just a matter of changing our law, but either bailing on that treaty or getting all the other signatories to change their laws.

We do charge a fee for registering a copyright here, which is unusual, but I hasten to point out that doing so does not affect whether or not you have a copyright. That happens at the moment of creation. It is simply public notice that you do and a prelude to legal action if you need to do that.

Given what he does for a living, Lessig cannot be ignorant of these facts. What are we to conclude from his continuing to advance such proposals?

[work at home seo]

While obviously, many of us feel very positive and strongly about Creative Commons as a good thing, no one is trying to completely replace copyright law (at least not in the U.S.). This is just a way for authors to waive certain rights, which can be a good thing.

[article wizard]

I want to have the atoms: I don't want to pay for music downloads because I want to have the CD's. In that view, a CC-license on music will work for me. But that's just me, I'm sure a lot of people would just download the music and be done with it.

[seema]

cd covers

[micro sd speicherkarten]

Very persuasive arguments...

I would like to throw in the thought that if we can reduce the costs involved in licensing a work to the point where the only real cost is price negotiation with the copyright holder, then anyone able to create value out of a 'dead' work will have a good enough incentive to license it. The owner then, if acting rationally, will license the work for a very low fee as well...