Sorry Mike, this just falls flat for the motion picture and television industry, which is why you offered up no direct examples from those areas.

Possibly — though again, I’m not 100% sure that’s true. I agree that the argument may be harder to support when talking about video, but I’m not 100% convinced of that. If you want examples in the video/movie world they’re starting to pop up.

Nina Paley, who we’ve written about often and sometimes posts here, has done quite well despite eschewing all exclusivity over her film. She explicitly allows anyone who wants to profit from her work to do so. And it’s not like she was a huge famous star when she made Sita Sings the Blues — yet her fans support her, and they know that if they want her to make more movies they should continue to support her. And Sita still continues to make money for Nina despite having been out for years.

Kevin Smith has certainly talked about how he sees infringement as a form of free marketing, and he realizes that he can continue to sell certain interesting scarcities that can’t be pirated. For example, for his last film (and his next one), he’s “toured” with the film, charged high amounts for the singular experience of watching the film with him and then doing a (hilarious) Q&A afterwards. On a per ticket basis, he probably made more with that film than most films ever. No need for “enforcement,” just loyal fans.

As we’ve discussed, Kickstarter has helped fund about 8000 films over the past few years. While some of those filmmakers still choose to make use of enforcement, it does show that there are alternative business models that do not rely one enforcement.

Lloyd Kaufman, head of the famous Troma Films believes that you don’t need enforcement to build a successful business model. Just recently he put up a bunch of his back catalog on YouTube and he encourages people to share it, knowing that it continues to build an audience and fans.

Filmmaker Jonathan Reiss has also pointed out that focusing on enforcement often makes little sense for filmmakers today — as the end result is often antagonizing fans, when there’s much more benefit in connecting with them, building a relationship and giving those fans reasons to want to support you.

And, of course, there are a growing number of video productions that are internet only. A whole bunch of “networks” of shows have popped up on YouTube where they tend to ENCOURAGE as much sharing as possible, and they don’t worry about exclusivity, because they don’t need to. It’s just so easy to watch the stream / embed — in which case they can then monetize via YouTube’s system, that the “problem” of infringement isn’t a problem at all. They’ve figured out that delivering what fans want to those fans in a format that makes sense, and not worrying about enforcement, they can often build up quite a lot of support.

So, no, I don’t think that there’s evidence that films necessarily need exclusivity and an enforcement mechanism. Whether that’s true across the board — I don’t know. Some have made the argument that there are differences depending on the size of the budget — and perhaps that’s true. I think it would be interesting to explore that.

While a few big name directors and stars may be able to mobilize a fan base to support them, they often do not hold significant rights or any rights at all. The big rights holder is typically the studio who assumed the risk of bankrolling, publicizing, promoting and distributing the production. Few corporate entities have a fan base to rush to its side over a piracy claim.

I’ve given some examples above, of both known and unknown filmmakers, so, not sure that the above is necessarily true. Also, as you know, a growing number of films are NOT financed by the studios, but rather by other investors, and the studios come in later (Sundance, Cannes, other festivals) and buy up the distribution rights. Yes, they still directly finance some films, but it’s a smaller and smaller percentage of films.

And, for those big studio films, take a look at the box office results lately. The biggest studio films are often the most pirated, but they do exceedingly well at the box office, because people love to see those films on the big screen in the theater environment. Yes, some people infringe too, but it seems that an awful lot are willing to pay.

It’s even worse for mid and low budget films where the actual creators have a real financial stake in the rights. There are largely unknowns or have a meager fan base. By the time they could mobilize their fans, the film has already pirated and the value to distributers in secondary markets is devalued because it is freely available online. They aren’t going to pay a fair price on the theory that the fans of unknown directors and obscure actors are going to come running with open wallets rather than opt for “free”.

Again, that may be true in some cases, but we’ve so many cases that go in the other direction, I’m not convinced this argument is accurate. Lots of films under the old system were unsuccessful and failed to get good distribution deals just because the films weren’t good enough to get distribution deals. We should be careful not to conflate films that never were going to score lucrative distribution deals anyway with films you believe were hurt by online availability.

And, as we’ve seen, for filmmakers who seem to really seek out an audience, embrace them, and encourage them to support them, it’s quite possible to build up a loyal following who are willing to pay.

Furthermore, services like Netflix are doing quite well in the market, getting people to pay subscription fees for access — and thus if you can get distribution on Netflix or other similar services, it’s often actually MORE convenient for fans to watch the movies that way on a legit offering.

So while your theory may apply to a band with a dedicated following, it won’t with a new band and it’s wholly unworkable in the motion picture industry.

“Wholly unworkable” is clearly false, since we’re seeing it work for some. The real question is how many. Is it limited to just a few outlier cases, or can it be applied more broadly? I think it can be applied more broadly, but it’s still early.

If I invest $2 million and five years of my life to make a movie, am I not entitled to any exclusivity? Should you have the same right to monetize it that I do?

I don’t know. “Should” is a moral question, unrelated to the question I’m focused on, which is what is optimal to society. I think “should” is a distraction. The real question is whether or not you need such exclusivity to best compensate you and to best get your movie out into the world. You, clearly, believe that to be the case. And you may be right.

I think there is growing evidence that exclusivity is not necessarily needed, but with only a small number of artists experimenting in that direction, the data is admittedly too small a sample size to tell at this point.

That, in my judgment is THE fundamental question to resolve. I understand it may be a “yes, but…” or “no, but…” response. However, until that core issue is addressed I don’t think an honest discussion can be had.

Again, you’re asking a purely moral question. And since it’s a moral question, I can’t see how it’s “the” fundamental question here. A moral question is one that everyone answers individually, but gets us nowhere near any objective truth or useful data.

I believe that a rights holder has an absolute right to economically exploit his creative output for a given period of time and enjoy the full protection of the law against others infringing upon that right.

By law you are correct that you are granted such a right. Whether or not it is “absolute” may depend on your definition of such things. But, again, I’m not really sure how that moves the conversation forward in any way. We know what you believe, but does the data actually support that? I don’t know.

I’ve been direct and spoken with complete candor in articulating my core belief, and would appreciate the same from you.

Sure. I hope I’ve done the same with you and explained my position as well.

If you’d like slightly more elaboration, I think it’s clear that new services, tools and business models are showing up, and they’re enabling new ways to create, to promote, to connect, to distribute and to monetize all sorts of content, including film. Many of these new things do not rely on or require exclusivity or protection, and so far, I think it’s likely that such services will find success and support in the market.

However, a few caveats on that: we’re clearly in a time of transition, and those can be messy. One thing is that these tools are actually leading to greater competition meaning that it may be harder for some to succeed, just because they have more competition, both in being discovered, but also in competing for revenue. That’s a big challenge. But I don’t see how exclusivity deals with that challenge at all. In fact, it goes back to the famed Tim O’Reilly line that, for most in that situation, obscurity is a much bigger issue than piracy.

In addition, being in a time of transition is extra difficult, because the clear roadmap disappears. Lots of creators try lots of different things, and there’s no “this is how you make a movie and make money” plan out there any more. So that’s a challenge (and makes it challenging to get good data). But we’re seeing some pockets of success (Kickstarter is a prime example, TopSpin has had some successes, BitTorrent, HumbleBundle, etc…) and as that happens people will gravitate more and more to these things, and hopefully a few basic roadmaps start to make themselves clear. I believe that the end result will still be many more options for content creators, and the ability to forge their own path, but a few “standard” paths that are more easy to emulate.

Whether or not those will require a form of exclusivity — that’s entirely possible. I’d like to see how they develop before I’m convinced one way or the other.