Spontaneous Scale

As we head toward the Summer—only one more week of 2L and 3L classes—I am returning to a longer project that I have been pursuing. The first post in the series is here.

But this change in technology has brought with it a more fundamental alteration of the landscape of content. With prior technologies, non-professionals—call them amateurs—couldn’t afford the standard tools for making content and lacked access to broad channels of distribution. The declining cost of the tools of production and distribution—the personal computer and the network—have changed that, with dramatic results. We have millions of bloggers. Content that might have been read by no one ten years ago—a diary—is available to the world through blogging. Small-group discussions that might have been done via email before now take place in public, on blogs and across blogs. Bands that would otherwise just be making noise in someone’s garage—preferably one a few blocks away—can now find a following on mySpace; and amateur videos are now competing with television on sites such as YouTube and iFilm. An uploaded video on YouTube may be seen by more viewers than a movie distributed by a major movie studio. This is the era of spontaneous scale.

The technological barriers to entry are gone, and so are the gatekeepers: you decide whether to create content and you can reach as many people as will pay attention. If you are willing to give away your content for free, there has never been a better time. How does a garageband get its songs played on the radio? The cynical answer is the same way everyone else does—by paying for it (payola or playola)—but whether radio stations make independent judgments about music or just follow the money, four 16-year olds in a Chicago garage don’t stand much of a chance. And radio is a local medium: there is no assurance that the audience for this particular band is in Chicago. Now a garageband can upload a song to its mySpace profile and develop a following anywhere in the world.

This has blurred the line between professional and amateur; indeed, it is hard to think of those as meaningful categories anymore. This is especially true if we taken into account that much content is paid for not by viewers but instead by advertisers and that authors often produce free content at the beginning of their careers with the hopes of landing paying work later. Few blogs—indeed I know of none—are run on a charge-for-viewing model. I subscribe to The Economist, but I don’t pay to read The Huffington Post. But both of those publications come with advertisements, and that authors (or publishers) are making money off of the content. Is any blog with advertisements the work of professionals?

And if I hope that my blog with attract sufficient readership so that I can have advertising, does that make me a professional too? Or if I hope to get a book deal from my blog? Most blogs hide in plain sight, visible to everyone, but seen by very view, but some blogs win the content lottery. In January, 2004, Stephanie Klein started her blog “greek tragedy” after the break-up of her marriage. Klein’s day-by-day posts gained a following as she recounted her return to dating. Her diary—with all the usual frankness—but available to all. Klein’s blog led to a book deal and Straight Up and Dirty was released in July, 2006. Entertainment Weekly picked it as one of its 50 Hot Summer Books and Klein hoped to turn her adventures into an NBC television show. When did Klein go pro? When do the Klein wannabes go pro? With the first blog post or sometime before that?

Much of the free music and video content that we see on mySpace and YouTube are the equivalent of copyright internships: no-pay jobs designed to get attention and a foot in the door to get a paying copyright job. The intern won’t seek to enforce the copyright in her work as she recognizes that she has no chance of getting any attention if she makes people pay for the work. But we shouldn’t think that copyright isn’t important to our intern. She really wants to sell her work but she can’t get to that stage if she doesn’t give away her work initially. But absent the lure of selling the work tomorrow—and she needs copyright to do that—she would never give away the work today. In an era of spontaneous scale, save for a few, we are all professionals now.

Comments

[Random]

Professor Picker,

Quick copyright question. If our budding artist gives her work away free on YouTube in hopes of being able to sell it in the future, can she later claim copyright protection for the specific stuff on YouTube or wherever that she was allowing free download of in years before? Not necessarily trying to punish those who downloaded back when she was a nobody, but rather those who continue to download the old stuff now that she is somebody who can charge for her work.

[Bruce Boyden]

I've been thinking a lot about similar issues lately as well, in connection with my Internet law class. Many of the troubling cases in Internet law appear to gain their intuitive force from the blurring between amateurs and professionals. I think previously there was a hidden assumption in many areas of the law that the law would only, or primarily, be applied to professionals. You can see this particularly clearly in copyright. The fair use test, for example, makes little sense as a rule for governing consumer behavior--it's way too imprecise for that--but makes a lot more sense as a rule governing rival publishers. The same goes for sync licenses, the public performance right, the byzantine compulsory licensing scheme, etc. Amateurs have a great deal less cognitive resources they can devote to parsing such rules, not least because they can't afford attorneys. I think the challenge will be to develop rules governing ordinary online behavior that achieve the level of order we want while still being realistically implementable.

[Chris Black]

I'm just a curious onlooker, but the answer to Random's question is yes. Until an artist sells or otherwise forfeits the copyright for an original work, the artist can exploit it by any lawful means, for profit or not -- the latter generally described as "promotional" use, at least in the music industry.

Posting a song on Myspace would be considered a form of promotional licensing, and I'm not familiar with the consents that an artist must give in that specific situation. But it is highly likely that the person posting the song must certify his/her authority to post a given song, and I also wouldn't be surprised if the poster also indemnifies Myspace against any claims for compensation for the trafficking of that content.

[X. Trapnel]

It strikes me that this crucial sentence: "But absent the lure of selling the work tomorrow—and she needs copyright to do that—she would never give away the work today" contains two non sequiturs, which when combined completely more or less eviscerate the point.

Some creative folks will, in fact, continue to produce, and to give away what they produce, even if they never expect to sell anything. To deny this is simply to deny the pluralism of human motivation.

This is a minority, obviously. The 2nd non-sequitur is perhaps the most important: it's just not true that copyright is necessary (as opposed to -helpful-) in order to profit from selling one's work. Both empirical and theoretical evidence confirm this; Levine and Boldrin have done great work making this clear in their 'Against Intellectual Monopoly' book.

[The Dude]

Randy, you do an awful lot of posting. Don't the other profs there have anything to say?