“Data is the new gold. It’s the new oil. It’s the new plastics.”
— Mark Cuban, 2017
Over the last decade the music, motion picture, and publishing industries have faced what many have characterized as a crisis. Online piracy and the digital technologies that enable it are said to have destroyed traditional models of content creation and distribution.
The music industry is most often offered as the leading example. In the nearly two decades since the digital file-sharing service Napster burst on the scene, recording company revenues have plunged by approximately 72% in the U.S., or almost 80% adjusted for inflation.
A great deal of that decline in revenue can be traced to the ability to distribute and share content digitally without either legal permission or much chance of consequence.
The story appears to be dire, and yet it is increasingly obvious that the crisis narrative obscures more than it reveals. To be sure, the shift to digital and the related upsurge in online piracy — a phenomenon we refer to here as the “first digital disruption” — dramatically re-organized power within the music industry and transformed the ways in which the industry does business and makes (or does not make) money. But the industry adjusted, and the disruption did not fundamentally change the way music is created.
The first digital disruption mainly undermined a particular set of music industry business models. Most of the impact fell on middlemen (record labels, publishing companies, and retailers) who saw their revenues sink. And even there, the story has been as much about creation as disruption. Record labels, formerly the dominant force in the industry, are much diminished today.
But streaming services, such as Spotify, Apple Music, and Tidal, once tiny, are now important players. Turning the destructive potential of digital distribution on its head, they have utilized the internet to pioneer new and lucrative modes of content dissemination. Indeed, the total revenue of digital distributors now exceeds the total revenues of recording companies.
The U.S. live music industry has also grown substantially, and is expected to continue to grow at about twice the rate of the overall economy. And even as record company revenues have shrunk, the best evidence suggests that more music is being produced than ever before.
On the other side of the market, consumers pay less, and have more access to, that cornucopia of music than ever before.
The next digital disruption is going to reach deeper. It will re-order how creative work is produced, and not simply how it is promoted and sold. It will transform our notions of authorship. It will raise fundamental questions about the nature and value of human creativity. And, perhaps less consequentially for the world at large — but of central importance to lawyers — it may shift how we think about the the value and utility of, and even the moral justification for, intellectual property rules.
What is this second digital disruption? We can see its onset in the high-stakes merger between AT&T, which owns digital cable and satellite networks for distributing video programming, and Time Warner, which produces film and television content. The Department of Justice challenged the merger, arguing that it would harm competition in video programming and distribution markets. In its pre-trial brief, Time Warner argued for the merger by noting that, as a stand-alone content producer it faced a competitive disadvantage versus rivals, such as Netflix, Google, and Facebook, that produce content but also own a digital distribution platform. As Time Warner argued:
First, unlike Google and Facebook, Time Warner has no access to meaningful data about its customers and their needs, interests, and preferences. In most cases, Time Warner does not even know its viewers’ names. This data gap impedes its ability to compete with Google, Facebook, and other digital companies in advertising sales, which are critical to Turner [Broadcasting (the owner of Time Warner]’s viability, and which allow Turner to keep subscription fees much lower than they otherwise would be. Whereas digital companies have the data and the technology to deliver advertisements that are both specifically addressed (shown) to a particular viewer and tailored to that viewer’s specific needs and interests, Time Warner cannot target its television advertising in those ways, creating an increasing competitive disadvantage for the company. The data gap also gives online video programmers a competitive advantage in the production and aggregation of content based on extensive data about the content preferences of their viewers.
This spring Judge Richard Leon of the United States District Court for the District of Columbia agreed, holding that “traditional programmers and distributors are experiencing increased competition from innovative, over-the-top content services [i.e., companies that provide video programming over the Internet] …. Those web-based companies are harnessing the power of the internet and data to provide lower-cost, better-tailored programming content directly to consumers. The dramatic growth of the leading [Internet video providers] in particular, including Netflix, Hulu, and Amazon Prime, can be traced in part to the value conferred by vertical integration — that is, to having content creation and aggregation as well as content distribution under the same roof.”
Data is at the core of the second digital disruption. In Mark Cuban’s words, data is “the new gold”: the resource that will create, and likely destroy, fortunes in the content business.
The “data gap” Time Warner spoke of is not just a competitive disadvantage for firms that produce many different types of creative content. Access to data about consumer preferences is rapidly becoming a competitive necessity, and the inability to gather such data, on a massive scale, is a fundamental disability.
Increasingly, we will see the rise of firms that own large and even dominant digital distribution platforms but also produce content for those platforms. Indeed, this trend is visible already. Netflix, Amazon, and, not yet but perhaps soon, Spotify, use the data they collect on consumer preferences and usage to make decisions about advertisements. All now use this data to decide how to organize and recommend content to users.
And some use their data to produce content that is more effectively targeted to consumer preferences. It is this last twist — the use of data to shape content creation, which we refer to as “data-driven authorship” — that is ultimately the most interesting feature of this new model.
PG says indie authors are conducting a variation on the concept in the OP with increasingly sophisticated salting of key words within their promotional materials in order to attract the types of people who will want to purchase their books.
One example is the more frequent use of author or title comparisons in book descriptions, such as, “If you like Penelope Blunderbuss, you’ll love ________”
When Amazon’s algorithms are trying to present books a reader will want to purchase, if that reader has just finished a book by Penelope, the algorithms may bump a book that includes Penelope’s name up near the top of its suggestions for that reader.
This is the great, great, great grand-descendant of Search Engine Optimization, first used by PG about 15 years ago to push his company’s products higher in the Google search results when people searched for those products.
Search algorithms have become enormously more sophisticated during the intervening years, particularly at Amazon, where they know both what you’ve searched for and what you’ve purchased, but the first principle of a successful search engine – show the customer what the customer wants to see – hasn’t changed.