In yesterday’s posting, I painted a dire future for macro changes to the Copyright Act. The reason for that prediction is that Congress’s hands have been tied by U.S. adherence to the Berne Convention, by the 1994 GATT agreement, the WIPO treaties, and by various regional or bilateral free trade agreements. For example, what if Congress decided that software should be protected for 10 years under a sui generis regime? What if Congress decided the term of protection should be life of the author plus 10 years? What if Congress decided that it would condition protection on filing periodic statements with the Copyright Office indicating a continued desire to exploit the work?
No can do, at least not without the U.S. violating its treaty obligations, being hauled before a WTO panel, and being subject to fines or cross-sector retaliation. (Actually, the U.S. could do all these things for works of U.S. origin, but that is as likely to happen as Rush Limbaugh voting for Senator Clinton for President). Congress’s room for deciding public policy is limited then to areas permitted to national legislatures under the various treaties and to things not covered by the treaties, micro issues to be sure. If the proposed WIPO broadcasting treaty is successfully concluded and the U.S. adheres to it, even less room will be available.
Contrary to John Perry Barlow’s declaration in 1994 that "everything you know about intellectual property is wrong," that “intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression,” and his follow-up statement in 2000 that “The war is on, all right, but to my mind it's over. The future will win; there will be no property in cyberspace,” Napster (the source of his optimism in 2000) is now a licensed subscription service while the Grokster defendants settled after losing 9 to zip in the Supreme Court. The Supreme Court also upheld term extension, and all of the follow-on suits challenging various other provisions (GATT retroactivity, etc.) have been decided adversely to the plaintiffs. And, as noted, trade agreements have globalized very strong IP protection. If I was a betting guy, I wouldn’t be betting with JPB. But then, I have never been a futurist: I can’t understand either the past or the present, so the future is far too daunting for me.
But I do try to read as much as I can by people who take very different approaches than I do: one learns less from reading those who merely reinforce existing beliefs than from those who challenge them. The past two days I have been reading “The Long Tail” by Chris Anderson. The book began as an article in Wired and there are some who think that was its most perfect form; their point is that Anderson's central point is straightforward and in little need of the iterative 224 pages presented in the book. The same complaint is made about other books of the same general thrust, especially Malcom Gladwell’s “The Tipping Point,” which has also been criticized as being shallow and merely trendy, attributes The Long Tail certainly does not share. (An excellent book is Steven Levitt’s “Freakonomics”).
So what’s Anderson’s approach and what might it say about copyright? Anderson studied a number of businesses, like Netflix, Rhapsody, and Amazon.com. What he discovered is that beyond the head tail of initial sales, where mass-produced hits rule, there is a long tail comprised of much smaller sales of niche works; the sales of niche works, in the aggregate, add up to a very substantial market and one that is growing at a fast pace. Moreover, as the offerings expand, there is no diminishment in the number of sales. He gives the example of CDs at Wal-Mart where half of the 10,000 CDs carried don’t sell once a quarter, whereas 98% of the 10,000 CDs available on Ecast, a digital jukebox company are downloaded in the same time period. The more works are added to the Long Tail, the same rate of sales prevails, suggesting to him vast opportunities for niche markets, markets which in the aggregate will rival the head tail of hits.
Anderson’s brief is to point to a fundamental cultural shift away from hits and he asserts, possibly to attitudes toward copyright. He readily acknowledges that head tail companies, those who produce the expensive hits, will always be in favor of strong protection. In a middle zone, he sees a less fervent attitude, while at the further parts of the long tail, approaches to protection are far more flexible and situational. That of course is hardly a novel idea nor one that is particular to the Internet. Groups like Metallica had a decided attitudinal shift toward copyright as they graduated from the long tail to the head tail.
What is different, Anderson asserts, is that the long tail market will, in the not too distant future become the dominant market in terms of numbers, eclipsing the head tail hit market. If true, we will still have a regime of very strong copyright protection on the statute books which will still be enforced strongly by head tail companies (which is why I think Barlow’s predictions have always been purely polemical and divorced from reality), but we will also have a less rigorous de facto regime for the majority of works.