Tuesday, December 19, 2006

A Long Tail Effect on Copyright?

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.


Anonymous said...

One good way to discourage the increased availability of content through the "long tail" would be to widen copyright exceptions and break down DRM so that works of marginal popularity could be circulated and copied without the right holder's authorisation. The consumer's increased ability to search for content makes it more worthwhile for suppliers to incur the cost of maintaining a large catalogue, while digital distribution should (eventually) reduce the supplier's cost of so doing. Impose obligations to keep works "in print" or free unauthorised copyists to make works available in competition with the right holder and you automatically reduce the incentive to keep the "long tail" in the market. The last thing the digital revolution should encourage is a weakening of copyright, except among people who disapprove of free markets - but that is another story.

Crosbie Fitch said...

What we are seeing is a de facto demonstration of how liberty should be enjoyed by default, and that where its suspension is truly seen as an equitable exchange by those willing to surrender it, then recipients may sign contracts to nondisclosure.

This is where we're inexorably going.

It is either:

A) that this contract is statutory and that every self-publishing author must nullify it for the benefit of their audience's liberty - leaving less contractual documentation for those who would suspend it.


B) that liberty is the default, and those who require its suspension must bind each willing recipient by contractual agreement.

Perhaps it would be more ethical if the choice of surrendering the public's liberty lay with each of its members, rather than with the author who delivers to them their work?

Restore liberty back to the public that they may then bargain it away if they so wish.

Compensation is a separate matter. Liberty does not interfere with a free market. It is monopolies that interfere.

Let the artist sell their art without their audience manacled by default.

Anonymous said...

Crosbie, what is or is not "property" is surely a democratic, but not an individual, choice. In creating property rights (like those over land) we do not create monopoly, except in the trivial sense that I have a monopoly over this sculpture or this sandwich until I sell it to you. If you are given the "liberty" not to pay for it, the author loses the "liberty" to sell it. I cannot see any difficulty about your author conceding his rights to the public under Option A, though copyright is not a contract, statutory or other.

William Patry said...

Crosby you might look at Charles Fried's new book, "Modern Liberty and the Limits of Government" to see if the left can meet the right on these issues. There is also a webcastof a discussion Fried had with Justice Breyer about liberty and government.

Thos. One of Anderson's points is that use of Creative Commons licensing is a way to to address these issues consistent with both copyright and a free market (which I certainly approve of heartily).

Crosbie Fitch said...


Property is naturally that (information, material or territory) which the individual can self-evidently control in their private domain, and through discrete contract, permit another to control, instead or also.

Secrets are property whilst they remain secrets, whilst they remain exclusively possessed by their owners.

When you deliver a secret to another, it is necessarily shared, and becomes a mutual secret. You may attempt to bind through contract this other to secure this secret, but being an intangible property trace of its movements can be difficult to observe.

By disclosing this secret, by publishing it to unbound members of the public, its circulation becomes uncontrolled and it becomes public knowledge. It can no longer be considered a secret the moment it passes to a member of the public.

Published secrets become the property of the public.

It is obviously this first disclosure to a member of the public (as opposed to a willing conspirator) that exchanges the value of the secret with the compensation the public is willing to offer.

If the publisher fails to maximise sufficient compensation, that is a marketing problem (some would say market failure).

Copyright is an artificial monopoly on the production and distribution of someone's secrets as they were originally represented at publication or as they may be transformed in certain methods or derivations.

Copyright attempts to pretend that an author still owns their secrets after publication, despite this clearly being contrary to the natural state of affairs.

The motive is clearly commercial.

It is easier to sell subsequent copies given a monopoly, than the first copy otherwise.

If there was a natural right to copies of manuscript, there'd also be a natural right to dissemination of the ideas and knowledge thereon.

The only inalienable aspect of a secret is the truth of its author or discoverer. Those privy to the secret have a right to privacy and the property of the secret, but unless willingly bound by contract they have no obligation to abstain from its dissemination, disclosure, reproduction, or modification.

So, by default, when you convey the property of your manuscript you convey the property of your secret upon it and the property of its original representation.

Anything else is a pretense - a suspension of the public's right to its own public property - a statutory contract to suspend their liberty, made upon their behalf without their consent.

Crosbie Fitch said...

Thanks for the book recommendation William, I will check it out.

I'll shortly be publishing my review of 'Rethinking Copyright' too.

Anonymous said...

My comments have little bearing on copyright, but I'm compelled to make the point that well before Anderson and his long tale--I mean "tail"--libraries were routinely applying the principle. We collect the popular stuff (and we do so in greater quantities), but we also think carefully about including and retaining materials that we fully realize won't move more than once every few years. The aggregate usage of all of these specialized materials reflects an important value, not to mention a significant operational problem, of the bricks-and-mortar library. I don't know whether the library's long tail activity ever exceeded that of the bulky head of John Grishams and Danielle Steeles (I'm talking public libraries here).

I am entirely in agreement with your take on futurism.

William Patry said...

Crosbie, does the public include those whom in a representative dermocracy the public elects, and whom once elected have repeatedly (in the U.S. since 1790) passed copyright laws that vest exclusive rights?

Crosbie Fitch said...

Your argument gave rise to a wee bit of bother between north and south a little while ago I seem to remember - regarding the human right to liberty.

South Africa also had a bit of bother over it most recently too.

Abrogating the people's liberty as a commercial incentive is not actually in the gift of the people's representatives.

They may not notice too much when a monopoly only affects those few fortunate enough to own printing presses.

But when the entire public owns a printing press, and incumbent publishers start lashing out with litigation on the unethical basis that the prosecution of their monopolies can be extended beyond the cartel and into the community at large, well, then the public starts wondering what the heck their representatives have done - whether unwittingly or otherwise.

Things have changed a fair bit in the last couple of centuries. Even if you're not a futurist, you still have to keep up with the latest technology. ;-)

The public is now a publisher - and it holds a little more power than the few publishers of years gone by. If the latter keep on prodding the public away from their territory they're going to prod it into irritation.

William Patry said...

Even our Confederacy during the War Between the States (or the Civil War depending on where one lives relative to the Mason Dixon Line) had a copyright law, copied, of course, from the North. For my part, even as a Northern Californian, I think the Southern States should have had the right to go their own way.

Crosbie Fitch said...

An unethical south does not become ethical through fiat whether permitted by the north or not.

Even now arguments are proposed that it was right at least to overthrow Saddam Hussein in order to liberate Iraq's people from dictatorship.

The argument is that a nation's right to self-determination does not trump human rights.

And at the same time the globalised cartel via WIPO is attempting to oblige all nations to subjugate their citizens' liberty in the interests of shoring up all dams that the west may maintain their water monopolies.

Commercial interests shouldn't trump human rights either, though it seems they may mightly persuade legislature and executive.

Anyway, arguments over ethics tend to be academic (and there have been many in copyright's lifetime). What makes a difference are powerful interests, and there are powerful interests at work here: the public vs the publishers.

As for liberals vs slavers, this is not an inconsequential encounter.

William Patry said...

What about Martin Luther King Jr.'s efforts to enforce copyright in his "I Had a Dream" speech? Into what camp would this place him?

Anonymous said...

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.

Gee, I thought the executive branch of government was supposed to enforce the law (like copyright protection), not "head tail companies." Silly me.
Barlow will be proved right in the end, when the state dies the death it so richly deserves.

Here's a great quote from JPB:

Regarding my own soft product, rock and roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away. We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes.

True, I don't get any royalties on the millions of copies of my songs that have been extracted from concerts, but I see no reason to complain. The fact is, no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual proplerty protection derives from our being the only real-time source of it.

From JBP, "Selling Wine without Bottles: The Economy of Mind on the Global Net," in Peter Ludlow, ed., High Noon on the Electronic Frontier: Conceptual Issues in Cyberspace (MIT Press, 1996), p. 23.

As for the "enforcers" in the other part of the tail, well, they'll just have to figure out a plan and a better business model.
In the meantime, abolish the copyright capo-raj; let's have liberty and justice for once.

Proudhon said famously but falsely, "property is theft."
He would have been right if he had said, "intellectual property is theft."

Anonymous said...

Uh, oh. According to today's Wall Street Journal, Ethan Smith, "Rockers Sue Memorabilia Seller," several rock groups, including the aforementioned Grateful Dead Productions, are suing Wolfgang's Vault for copyright infringement.
What's up with that?
Does anyone have John Perry Barlow's e-mail address?

William Patry said...

Bill, I know George Bush was confused about the three branches of government too, but it is not the executive branch that enforces the copyright laws in the civil context given in the blog, but rather private litigants in the judicial branch.

The point that Anderson was making was exactly in line with that: the copyright laws are on and will remain on the books in a very strong form no matter how what JBP thinks; the question that Anderson poses is that while head tail companies can be expected to enforce their rights (and it is their choice to do so or not), longer tail content owners may take a different approach.

Regardless of the amount of lyrics that JBP actually wrote for the Grateful Dead (careful statements note that the claim is limited to being "a" lyricist, and despite his repeated references some of which you quote to "our concerts, "our performances," "our tapes" he was not a performer and did not own any rights in the sound recordings that were being taped), I would note that the Dead itself successfully sued stores that sold live performances of its concerts. Did JPB ever complain about that? Did JPB receive no royalties for exploitation of his songs? The Dead certainly did. Why didn't the Dead disclaim all rights in their works, including the studio albums if intellectual property is theft? Why didn't JPB, as an important member, insist that they do so?

Nick said...

Having also read Anderson's book (and agree the book didn't surpass the original article) I am stuck on the idea that the long tail won't inspire a change to copyright, and if it does, it will be for the worse. How will the untapped value of the tail motivate people to behave? In part, it will encourage the companies in the head to expand their reach further into the tail, for a company could make a nice bit of change with a large collection of niche goods. I see this as causing problems for efforts to reduce the duration of copyright and to require registration as a means to free works of little value. If the aggregate of many losers is profitable, whatever process that might have worked to get those works into the public domain any earlier has fallen apart.

The way I read Anderson was that the future of business online was to capture as much of the tail as possible. True, artists stuck in the tail can do better now because the Internet makes it easier for fans to find their works, but I don't see this as enough of a basis for a change to copyright. As the larger players seek to expand their holdings and enforce their rights over their loser works more fiercely, so as to protect the sum value of all their losers, and given the extent to which culture is derivative of what came before, the current tension will only get worse.

Maybe I've misinterpreted Anderson, but I read him to say that the future is in hoarding copyrights and in monopolies as the means to best capture value online. That a separate, more lax copyright system will evolve in the tail (like CC works) doesn't seem to warrant much change. Yeah, Dead fans traded tapes in elaborate networks, but the music business is still the same. Is it enough for CC to be the same kind of idiosyncratic response? I would expect not if the long tail is to produce a positive effect on copyright.

Crosbie Fitch said...

It's often a tricky ethical dilemma for the individual who disagrees with their state's action, despite benefitting from it, whether they should reject their individual benefit on principle, or whether they should accept and exploit it in order to improve their own potency in achieving change.

Sometimes, you may be fighting for liberty in one form and not notice your enjoyment of its suspension in another form - or that perhaps one form has a far more significant impact in people's daily lives, or society at large.

Thanks to RIAA/MPAA, the significance of copyright's restraint on free speech and freedom of artistic expression is having an impact on a considerable number of people's lives and consequently society at large. This is an 'education' ultimately destined to have quite the opposite effect to the one the incumbents' are presumably hoping for.

William Patry said...

Nick, I prefaced my discussion of Anderson by saying I make it a practice to read as much by people who challenge my views and so I was referring to him too. I also noted I am not a futurist. (My references to JPB were designed to show the perils of being one, especially one who serially refuses to admit that his predictions have been badly wrong. A side benefit of the post is showing that followers of futurists refuse to admit the futurist's failings and continue therefore to deny reality. Failing to deny reality cripples your ability to deal efectively with it).

So my comments on Anderson are not an endorsement of his views, but rather an attempt to see if the restriction on Congress's ability to effect macro changes in the Copyright Act (noted in the previous post on the 1909 Act) might be ameliorated by commercial and cultural changes.

The ties-in with Anderson I was playing with were these: (1) our copyright laws will not change in their fundamentals; they can't due to international committments. Wanting them to change is not the same thing as realizing they won't. This means a long term and lack of formalities are here to stay. As Anderson notes these aspects of copyright will be used by head tail companies; but he also wonders whether (2) as the long tail becomes more viable thanks to creators being their own publishers, there may be less need to assign away your rights to head tail companies and this as well as cultural changes in attitudes toward copyright among creators (evident by many postings here) may lead de facto to more flexible approaches. (See pages 74-75 of his book).

The law will remain on steroids, but thanks to Creative Commons licenses and the like, people can opt to craft their own level of enforcing rights. You may be right that head tail companies will have the ability to hoard but they have to get the rights to begin with and that presupposes that things stay the way they are, something Anderson questions in part. One of the great parts of his work is that he doesn't oversell the extent of any possible change, and this of course provides for me a very healthy contrast with futurists who remain untethered to facts on the ground.

Anonymous said...


Good points about JPB, which I should have taken into account. He certainly did profit from the royalties the Dead extracted from the market. His quote would apply in a free market, and I should qualify this in my essay, perhaps in the footnnote after the citation. If I can't figure out a satisfactory solution, I'll drop the quote.
Re: enforcement of civil law, yes copyright owners do enforce the law in a sense, but do they not enforce it in state-supplied courts? Have they never called in the cops or the FBI to investigate suspected infringement of their "rights," or to confiscate "pirated" material?
In other words, the state certainly does have an important role in enforcing copyright.
And of course it is the Congress that writes the copyright laws in the first place.
Mark Twain was right when he called it America's only native criminal class.

William Patry said...

Bravo to you Bill. My point is not to rag on JPB, but rather to say, look there are some very big things that won't change as much as some of us would like them to. Pretending they will change isn't healthy. Let's figure out what we can change and work on that and maybe changes taking place in distribution systems will aid those efforts.

Anonymous said...

We may not be able to change the basic outline of copyright protection because of treaty obligations, globalization, multi-national media conglomerates and the further extraterritorial interconnectedness of the Web. (Those men and women on the moon will blog just as visitors to the international space station have done http://spaceblog.xprize.org/ and create even greater incentives for common rules.) But what will change, it seems to me, are the exemptions and exceptions.

I view the DMCA, the tome-like proposed and alleged compromise on section 115 mechanical licenses, the intricate dance of the Copyright Office rule making functions with the Copyright Royalty Board all as part of the United States’ parochial response to international rules. That response mimics the avoidances of uniformity in the EU and within the EU through the behavior of quasi-governmental licensing and collection organizations for copyrighted works which establish de-facto laws extrinsic to the formal treaty-bound statutes and codes.

This means there is hope for change in the rules for digital uses and distribution of copyrighted works despite the overarching complex of international laws. In effect, a new common law can evolve which we see in fair use-based decisions on behalf of Google and in the near-nullifications of existing law found in the earlier Grokster decisions. This law will evolve because certain new technology and the way in which it is used cannot function under definitions presuming an analog world based on the physical boundaries of national borders. The disconnect is too extreme and the desire for the utility offered by the technology is too strong. And as the exceptions and exemptions grow at some point they may reach enough mass in this field to force us to finally confront with intellectual and political honesty the fact that we need a new contract for intellectual property in the digital century arrived at by open discussions with open access for all interest groups.

There is great hope for the future that we should all welcome for the New Year.

William Patry said...

Josh, I do love your optimism and think you are right on target: I think the area where there is the most freedom is in a common law, that is, judge-made approach to these issues. There certainly is some room for legislative exemptions and exceptions regarding digital uses, and the other common law governments are doing so now, although with a disappointing lack of appreciation for how the sort of changes you note are already here.

It may also be that our judges are similarly hide-bound, but I would hope with you that the reality of how things work will as you so nicely phrase it, "force us to finally confront with intellectual and political honesty the fact that we need a new contract for intellectual property in the digital century arrived at by open discussions with open access for all interest groups."

Anonymous said...

To my mind, it is the various copyleft licenses and more importantly, the pool of works that may accumulate under those licenses what hold the most promise for changing how "business is done" with respect to copyright.

all the best,


Unknown said...

William, In another discussion, I am interested in your technical expertise as it relates to one's freedom to republish articles and/or magazine or catalog content that was originally published prior to 1978 in the form of CD's, using .pdfs as the retrieval format.

recently I have noticed the availability of many long out-of-print resources like this available from on-line sources --for profit-- that are clearly not being offered by the original publisher of the periodical.

In the instances I have seen, this documentation is pre-1978 which leads me to the follow-up questions;

1)How can one determine if the magazine still holds any copyright protection on it's publications?

2) If the catalog does not reflect any printed copyright notice is it considered to be public domain?

3) If a work (either book, catalog or articles) is older than 75 years (assuming original publication prior to 1978) is it legally acceptable to republish the work either in print or electronic form without permission?

3a) If so, can the republisher file a claim to obtain the copyright going forward?

I appreciate your responses and find your blog very knowledgeable.

Looking forward to your response.