By way of exposition, SOPA (or the Stop Online Piracy Act) is a piece of American legislation aimed at preventing the distribution of pirated content (but also such things as counterfeit drugs). Its key provisions provide for court orders that will prevent search engines from linking to infringing material, require ISPs to block access to infringing sites or prevent online payment processors from handling payments from sites dealing with infringing material. The aim is to combat sites not hosted in the US and therefore out of the reach of current legislation.

Critics claimed that freedom of speech would be adversely effected by “black lists” of sites. There would also be a chilling effect on user-generated content, with sites such as YouTube or WordPress finding themselves blocked for the actions of one of their contributors. An open letter from constitutional academic Laurence Tribe received extensive coverage, particularly his claim that SOPA would “…undermine the openness and free exchange of information at the heart of the Internet.”

Prominent opponents included Google, YouTube  and Wikipedia, some of which (Wikipedia being the most notable example) blacked out their sites for a day in protest. Just to add to the drama, Rupert Murdoch very publically screwed up his first attempt at a twitter tirade against President Obama on the subject, directing it instead at Australian telco Optus (ironically not without cause, given my last post). And around one holiday dinner table I was subjected to an emphatic denouncement of all forms of copy protection from a teenaged cousin who opined “information has to be free.”

Here’s part of the reason I think the whole thing got out of hand: the confusion of free speech and information with content. I completely agree with the fundamental importance of free speech and that information needs to be available to all. Wikipedia is an excellent example of the latter – it contains factual scientific, historical and biographic information, all of which is a valuable resource and should be freely available to everyone to promote their understanding of the world around them. 

A movie, on the other hand, is a performance comprising various forms of artistic and technical endeavour intended to inform and entertain. That is to say, content. Unless anyone can justify the argument that the contributors to the movie should not be paid for their efforts (slavery springs to mind), the “information must be free” argument does not follow. And while my cousin – an aspiring musician – announced in support of his argument that he didn’t care if he was paid for his own artistic efforts, that doesn’t mean all artists must suffer.

I turn to the redoubtable Margaret Thatcher by way of example. The Wikipedia entry contains dates and facts regarding her term as British Prime Minister. Compare this to the recent film The Iron Lady starring Meryl Streep as the eponymous baroness. While it is based on the same dates and facts, it is content – an artistic expression of those dates and facts. Arguing that The Iron Lady should be protected does not mean that the Wikipedia entry will be deleted.

Intellectual property law has long recognised the distinction between information (which is not protected) and expression (which is). What’s new to this debate are the likes of Google, YouTube and Wikipedia – who have built themselves on other people’s content – resorting to oversimplified “slippery-slope” arguments to protect their own operations. The fact that the other side of the debate is being represented by organisations such as the RIAA – whose boneheadedness has made them so deeply unpopular - doesn’t help.

As a content maker, I will not be told that I can do nothing but sit back and watch my work being ripped off. That’s not to say SOPA is the answer, but nor is cloaking piracy in the sacred vestments of free speech.

It’s being said that audiences are fragmenting - but that’s just how it looks from the perspective of media incumbents. Actually, audiences are diversifying away from content intended for mass audiences towards what best suits their interests. This move away from the mass has been aided and abetted by search and social media; it will be further encouraged by the rise of content curation.

There will continue to be a place for media giants with the institutional access to the famous and powerful they provide. Large advertising deals and syndication payouts will still pay for high-quality production. Sport will always require deep pockets as it is one of the few genres that can reliably attract large numbers of eyeballs.

However, despite the advantages of their incumbency, media giants are going to have to work harder to keep smaller audiences. The advertising money derived from mass audiences and readerships is already declining. In print, paywalls are being thrown up but the realisation is dawning that audiences will only reliably pay for content that is valuable to them. Media outlets geared to producing generic content for mass consumption are proving ill-equipped to provide this value.

Now is the time for content makers to target audiences directly – by giving them exactly what they want, when they want it.

Sharpening Focus

The key to success in any business is a steady and growing customer base. This is no different for media and has been well understood in both broadcast and print environments, which require an audience that comes back every month, every week or every day to the next episode or edition.

One of the early implications of the shift online is that broadcasters are finding that their own brand is becoming less relevant. Audiences can go directly to the studio or the home network (or even worse, to torrents) to get the content they’re looking for. Thanks to search and social media, what has been traditionally considered a ‘sub-brand’  – the show’s name – is now the main brand. That’s what everyone is talking about and searching for. This is a problem for studios looking for the security of big syndication payouts (where the risk of the success of the series in a given market is passed to the broadcaster). However, it creates opportunities for producers prepared to focus on creating content for that has real value for a particular audience.

A similar situation is faced by traditional print businesses, but they have more potential to salvage the situation. Readers can now go online to any news site (or, typically multiple sites)  that takes their fancy.  So the question becomes, what is it that takes the reader’s fancy? News websites all carry pretty much the same core news, so what counts in attracting and retaining readers is how the tone and context provided fits with the reader – both in the writing itself and the op-ed content. The masthead brand embodies that tone and context and so retains value - for now.

How well print adapts to the online media environment will be key to their success here. Analysis and op-ed provides the tone and context that the reader is looking for and video has a valuable role in this kind of delivery. Audiences get more from an interview by seeing the subject sweat or squirm than by reading a transcript, for example.

Whether as print or video (but particularly video), this kind of content tends to be personality driven. We see it right now in the op-ed columns of newspapers, while even in the relatively dry area of economic analysis, Alan Kohler attracts dedicated audiences in both print and TV. These personalities become sub-brands, which if managed well offer the opportunity to build an audience and even reach beyond the home website into other platforms and new audiences. Alternatively, the sub-brand becomes poses the same threat in news as it does broadcast – it becomes the audience’s focus. Again, there are opportunities for competition as audiences increasingly go directly to the source.

If Content is King, Its Crown is Audience Value

Moving beyond the mass and attracting audiences by more closely meeting their interests inevitably means smaller audiences. This doesn’t sit well alongside the cost and complexity of production and distribution, factors cited as the main reason more targeted content will struggle to succeed. (That both cost and complexity have been dropping rapidly is a subject I intended to address in a future entry).

And yet content that is more engaging to its audience can more realistically expect to attract subscription revenue from that audience. If an individual audience member is worth ten dollars a month as a subscriber rather than forty cents an episode as eyeballs for advertisers, audiences in the tens or hundreds of thousands (rather than millions) become viable.

This entry has focussed on only one facet of a broad trend (future entries will seek to balance this). The shift in audience focus has been fueled by a diversification of distribution platforms – notably mobile and tablet form-factors – and a move from broadcast to on-demand delivery. IPTV services will continue this diversification, encouraged by the launch of the NBN. However, a look at the sort of content audiences will be seeking in this shifting environment seemed an obvious place to start.

This is something I researched at law school, as back then it was by no means obvious how existing copyright legislation would apply in a convergent media world. I’m not sure how much has changed. A lot of what is currently assumed to be law, especially around free use, is actually just industry convention and untested in court. All it takes is for one player to adopt a more creative approach to digital rights and the whole house of cards could come crashing down.

I don’t think there’s any danger of that here – the approach Optus has taken seems too clever by half. It would have some interesting implications for the likes of ABC’s iView though, which could avoid extra payments to license broadcast content for the online catchup service under the guise of timeshifting.

UPDATE: It turns out Justice Rares in the Federal Court appreciates a cunning plan when he sees one, and has ruled in favour of Optus. With hundreds of millions at stake for sporting codes, an appeal is expected, although as I suggested in my orginal post, the judgement has a potential impact much wider than just sports content.