Television and the Marketplace of Ideas, Part Two: Will New Technologies Better Tailor Content to Viewers' True Preferences?

By JULIE HILDEN
julhil@aol.com
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Tuesday, May. 23, 2006

In a 2005 column, I discussed the influence of a number of business and technological developments on the efficiency of television's "marketplace of ideas" in getting viewers what they want, when they want it.

As the term is used in the First Amendment context, the "marketplace of ideas" is the free-market mechanism that ideally ensures that the truth prevails; the Amendment itself prevents government interference in that market.

In the television context, though, I've used the term "marketplace of ideas" in a looser sense - to mean an efficient market that produces both the content viewers want to see most, and the highest-quality content possible (I'll consider later how much these two goals may or may not diverge).

In both contexts, the idea is that a free market -- with alternative venues and methods of presentation, broad access, and as little government interference as possible -- is the best way to go.

Technologies That Enhance The Marketplace Of Ideas On Television

I focused in my prior column on the influence of TiVo and of a la carte cable - which allows viewers to pay by show, rather than by channel. Since then, a number of other technologies have come to greater prominence: TV shows are increasingly released in DVD sets, and for viewing on video iPods. In addition, mobile phone companies are now providing video from some TV shows for viewing on customers' cellphone screens.

All of these developments enhance the marketplace of ideas in that they increase viewers' ability to choose when, and in what setting, they watch their shows. In addition, they increase viewers' ability to pay directly for content, if they prefer, and thus to watch shows commercial-free. (A la carte cable, as I pointed out before, also allows viewers to stop subsidizing content they don't want to watch by paying show-by-show, not channel-by-channel.)

But beyond the issue of freeing viewers from having to pay for, or watch, content they actually dislike, what about the issue of ensuring that viewers have access to the content they will like the most - or that is of the highest quality? Put another way, when will new technologies improve the match between viewers' preferences and the content that is produced? And what about the match between societal standards of "quality" and that content?

It's these issues that I'll address in this column.

The Lessening of The Importance of Syndication, and Thus of Its Market Distortion

In a May 22 New Yorker article, Tad Friend explains why, recently, syndication has taken on a lesser importance in the world of television. In my view, this is a good thing for television's marketplace of ideas because it removes the bias against shows that viewers loved, but that were not suitable for syndication.

A show is primed for syndication if each episode is self-contained: "Law & Order" is an excellent example. Conversely, a show is not easily amenable to syndication if it unfolds over a series of episodes that are meant to be viewed in sequence - as is the case with reality shows, or dramas like "24" where the season's arc makes each episode a building block in a larger plot.

The networks used to - and to some extent, still do - prefer shows that can easily be syndicated because, financially, these shows keep on giving - paying out not only when they are first aired, but potentially, long after. But as Friend explains, the popularity of reality programming (as well as of serial dramas like "24") caused the networks often to "abandon[] their expectations of profits from the 'back end.'" And as Friend also notes, networks have recouped some lost profits by releasing serial dramas and reality shows on DVDs. While these shows weren't ideal for syndication, they were perfect for DVD release, since their sequence could be replicated on the DVD.

The removal of at least some of the bias toward syndication not only eliminates a market distortion, but, in my view, gives show producers and writers the ability to write deeper, more interesting stories - because their palette of creative choice is larger. Not only can writers and producers offer shows primarily focused on seasonal character and plot arcs, but they can also offer "mixed" shows that cater to both the need for a satisfying episode, and the need for a satisfying season. And the networks are becoming more supportive, because of the potential for future DVD sales.

The Fox drama "House" is an excellent example of a "mixed" show: Though each episode is truly self-contained in that it resolves a patient's crisis with a final, correct diagnosis, the season has also explored, over multiple episodes, ongoing, deepening conflicts among the doctors who form the show's permanent cast. If the impetus for syndication were more prevalent, the patient crises might edge out the seasonal character arcs - to the detriment of the show's overall quality.

How Much Harm Do Product Placements Do to Content?

The New Yorker's Tad Friend also points out that the "captive audience" issue hasn't disappeared; it's just gone underground. Though TiVo may free viewers from having to watch commercials, it hasn't freed them from watching product placements: As Friend notes, for instance, "In one week last month, Shedd's Country Crock meals were woven into network story lines, with varying degrees of seamlessness, a hundred and forty-two times."

While this statistic is somewhat horrifying, how much harm do product placements really do? I think the answer to that is partly a matter of taste, and partly a matter of how creative writers can be - and are allowed to be by executives-- in avoiding having product placements damage, or detract from, content.

Sometimes product placements, in my view, do no harm at all: If a character drives the "right" car, then the car can actually play a positive role in the characterization. (For instance, the lead characters of "Supernatural" are perfectly suited to their Chevy Impala; a different car, though, would grate.)

Granted, some viewers will blanch at the blurring of the line between commercials and other programming. But others will see product placements as a small price to pay to avoid having to view up to five minutes of commercials for every fifteen of the program they want to watch.

Perhaps the market will someday cater to those who particularly hate product placement by touting product-free shows, or by allowing purists to go back to enduring commercials that precede the content they want to view - much in the way that some websites now do.

Even without that kind of option, however, I think product placement has so far, in practice, at least proved somewhat superior to commercials in addressing the "captive audience" problem; most people would rather see a few cereal boxes used in passing, than sit through a minute of commercials for every three of the show they want to watch.

Still, if product placement becomes more obtrusive, it may also do more damage: Marc Cherry, the creator behind ABC's hit "Desperate Housewives," has remarked that, "There's growing concern that if the advertisers start to dictate a storyline, just how horrible that would be." There's surely a slippery slope here, and before the slope slips further - and plots are transformed into promos - writers and producers ought to speak out.

In the third of this series of columns, to appear next month, I will discuss the possibilities for the future of television and the marketplace of ideas, including viewer-pre-financed programming.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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