I want candy, PLEASE.

The internet has made copyright issues complicated enough for filmmakers wanting to make money distributing their films. For documentary filmmakers, the issues around fair use and copyright have always been a counterbalance to their own impulse to protect their creative work. At SILVERDOCS this past weekend, panelists tried to sort out some of the emerging issues in the complicated arena of copyright law.

One issue that emerged is the challenge to actually get proper licences for works that because of digital duplication are now often difficult to trace to a legal source. USC School of Law Professor Jack Lerner suggested that a more streamlined version of copyright law that treated film and music in a unified way might be more effective for digital media.

Digital media could be an amazing resource tool if there were a way to digitize the many obscure, orphan, or rare film prints to create a kind of super media library. In a way, this seems like a natural project for the ever-expanding internet. However, as panelist Mark Lemmons of Thought Equity Motion suggested, it is unclear how it could be financed, given that the current paradigm seems to be internet=free (or at least, hard to monetize).

Today, thanks to BuisnessofVideo.com I attended the eMERGING MEDIA FORUM, a day-long conference presented by BMO Capital Markets and featuring talks from CEOs of such internet media and tech companies as BitGravity, BitTorrent, TiVo, GridNetworks, and MLB.com. Though I anticipated Doug Walker from BitTorrent would be the most interesting to indie filmmakers, as it turned out, it was Tom Rogers from TiVo who really stole the show (and not just because he began his talk with a five minute Simpsons clip).

Most of the presenters had the same basic message- give the consumers what they want, and what we think they want is media on demand, across any platform, in high quality, quickly, easily, and then somehow make money off it. TiVo seems to have one of the better plans to achieve this end- they are partnered with a cable company, Comcast, so they can get to the existing consumer base. They are putting R&D into the concept of being “the Google of TV”- i.e. through their infrastructure, you would be able to look both at television programs that are available and find available video on the web- they are already partnering with a bunch of online video sites including YouTube.

TiVo also is working on another key customer desire- universality. One set-top box, one remote- no “partial solutions”. Rogers argues that the television is still second only to the car as a major household purchase for Americans, and with new HD models getting bigger, flatter, and cheaper this will only continue.

Naturally the most fascinating thing about TiVo is that much of its appeal to consumers is its ability to enable “commercial avoidance.” Television was basically invented to frame commercials- it’s a little strange to think people can continue to be entertained in quite same effective way without them. TiVo offers companies “solutions” based on the metrics they have discovered by studying people using their product to fast forward ads.

For indie filmmakers, the issue of advertising is not quite the same, but the mechanism for getting films to viewers matters- and TiVo is not a bad bet.

Also: thanks to Steve Freitas at BMO for the hook-up.

Over at Digital Cinema Report, IndiePix prez Bob Alexander has a column about the “New Era for Independent Film.” Among his points:

• Over the last 3 months, the indie distribution business has seen some major shifts, either towards elimination of specialty divisions at studios (Warner Independent, New Line, Picturehouse); financial instability (THINKFilm); or consolidation of cable markets for indie film (Sundance @ Cablevision).
• With the expenses of theatrical, it will be too costly to put indie films in theatres.
• Traditional indie distributors don’t have a plan for this end-of-theatrical marketplace.
• The new era will allow for amazing new films with great cinematography, editing, and storytelling but will not use theatrical distribution (but IndiePix will be at the forefront, natch!)

While I applaud Bob’s vision and his optimism, I can’t say I agree with the model he’s proposing, at least as I understand it. While I believe that there will be a market for digital distribution for indies (it is, in fact, the premise of this here blog), I think that the idea that theatrical will totally wither and die seems unlikely for a number of reasons. What seems more likely is that indie theatrical will need to become more limber, have a better understanding of what was once known as the “non-theatrical” market (schools, museums, non-profits), find more creative ways of rolling films out and rely more on marketing than advertising. Some kind of “theatrical” is still important and will continue to be so- even though the real money for the last decade has been in ancillary.

One reason traditionally is reviews- perhaps a new first gate will emerge for reviews (major festivals?) but so far, if you want reviews, it’s pretty important to have a theatrical. Conceivably there could be an online system with the same prestige as theatrical but right now the model seems to be to get everything out there and “let the audience decide”- which they have done in the past with the help of reviews from theatrical runs. Reviews are not what they once were, but for the indie world, they are still pretty important for getting people interested in the film. A great NYTimes review still has traction- and a theatrical is needed, by and large, for the Times.

Maybe even more importantly, theatrical is a great social networking tool. I think it has not been exploited enough in this way- there are a lot of things exhibitors can do to make their theatre more than just a 2-hour destination point. But even so, going to a movie is a great social activity as a date or as thing to do with friends- it’s economical, climate-controlled, and creates a common experience in 90-120 minutes. It’s also fun to do alone when you want to get out of the house. I don’t think watching something on your computer (or even set-top box) will replace this completely.

The folks over at TechDirt responded today to the discussion at Cato Unbound regarding copywrite that I discussed earlier. In their incredulous reaction to the idea that copyright is still viable (or at least to the article by Doug Lichtman, a law professor at UCLA on the subject), they offer their own “helpful hints” for saving the movie business.

What’s interesting about these suggestions is that they suggest that even the savviest tech types are still under the impression that theatrical revenues are either particularly significant for most releases or that increasing theatrical revenue (which tends to be costly) would compare to the much greater revenues that stand to be lost in home media sales.

Clay Shirky‘s new book Here Comes Everybody: The Power of Organizing Without Organizations is not specifically about media distribution (it’s more generally about how social networks and their emergence on the internet have affected culture and business development) but it does deliver this metaphor:

When reproduction, distribution, and categorization were all difficult, as they were for the last five hundred years, we needed professionals to undertake these jobs, and we properly venerated these people for the service they performed. Now these tasks are simpler, and the earlier roles in some cases have become optional, and are sometimes obstacles to direct access, often putting the providers of the older service at odds with their erstwhile patrons. An amusing example occurred in 2005, when a French bus company, Transports Schiocchet Excusions (TSE), sued several French cleaning women who had previously used TSE for transport to their jobs in Luxembourg. The women’s crime? Carpooling. TSE asked that the women be fined and that their cars be confiscated, on the grounds that the service that the women had arranged to provide for themselves– transportation– should be provided only by commercial services such as TSE. (The case was thrown out by a lower court; it is pending on appeal.)

Though this incident seems like an unusual lapse in business judgment, this strategy– suing former customers for organizing themselves– is precisely the one being pursued by the music and movie industries today. Those industries used to perform a service by distributing music and moving images, but laypeople can now move music and video easily, in myriad ways that are both cheaper and more flexible than those mastered and owned by existing commercial firms, like selling CDs and DVDs in stored. Faced with these radical new efficiencies, those very firms are working to make moving movies and music harder, in order to stay in business– precisely the outcome that the bus company… was arguing for.

While this is certainly a well-aimed jab, and has some definite legitimacy as a criticism of the film and music industries. I think there are a couple of points that this argument (which is one you hear a lot) ignores.

1) the film and music businesses are not the same. The music business (in my opinion anyway, as a former fringe player) was pretty much founded upon exploitation of the artist and relied upon that model, for the most part, to become the monolithic entity it appeared to be until the late 90s. The way contracts were structured and revenues were distributed were designed to bring revenue to the corporations. Even indie labels had a hard time completely avoiding this structural model though they were probably less scummy about it.

The film business is not free of exploitation historically, but as a more collaborative creative endeavor with more money involved, both the existence of unions and the complicated power hierarchies within production have helped to prevent the kind of manichaean power imbalances of the music industry. While new technologies are allowing many more people to create films (by some definition of the concept), there is still nowhere near the production of films as compared to songs, and there are still more costs in creating and marketing films by an exponential amount.

2) These facts may have no mitigating relationship to the carpooling analogy, but it doesn’t seem to be a lateral comparison. In the case of the ladies creating a carpool, there are consumers creating an alternate distribution network for a service (transportation) that is abstract- the companies feel they have some entitlement to these networks because the ladies are infringing on some kind of protected market. In the case of consumers distributing film online, the problem is not entirely that consumers are creating new channels of distribution, it is that they are distributing something that is owned (not just moving themselves, as in the bussing situation). And there is not simply some organic P2P sharing happening, the distribution of these owned products creates revenue for sites who help to disseminate the files, while the creators of the films are not getting any revenue.

3) There is another difference between the music industry and film- for most musicians, it is fairly inexpensive to make a recording. If the music industry as it was once known fell into the depths of hell, most musicians would still be able to record something, if not lushly produced tracks. Film is more dependent on its industry. Without the business, big budget movies would be difficult to make. More importantly, what might be described as middle-budget films, not big-Hollywood vehicles with stars and things blowing up, but dramas or indies with higher production values are still made with a bottom line, and if there is no market in home media, it is not clear if that type of movie could be made at all. In some businesses this might just seem like product evolution but in creative industries it does seem more complex, especially since most films that have been recognized as aesthetically “excellent” fall into this middle-budget category.

There is no doubt that the film industry will have to adjust to the new “market” realities. But since the Statute of Anne there has been some sense that the creator of work should have some protections in the marketplace, “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing… Books, and other Writings, without the Consent of the Authors… to their very great Detriment, and too often to the Ruin of them and their Families:…” It is easy to duplicate works now- as Shirkey suggests, every viewing of a digital work is a duplication- but should that ipso facto mean that there should be no protection for creators?

Are you a “criminal”? Or are you influenced by over-the-top rhetoric? Either way, you might want to head over to OpenSourceCinema where you can voice your opinions photographically.

HT: Agnes Varnum.

Tim Lee has posted his response to Rasmus Fleischer’s proposal to ditch copyright law at Cato Unbound, making the hardly strident but accurate point that copyright law is still functional outside the digital realm.

In that domain, a reader comments on my earlier post:

I think the general consensus among folk who study this stuff is that watermarking — and a variety of schemes have been floated for years now — isn’t really going to be that helpful. The large-scale distribution content firms worry about, as on p2p networks, typically involves skilled geeks who can strip away every form of watermark yet devised with minimal trouble, so watermarking won’t stop untraceable copies from getting into circulation there (all you need is one clean copy). On the other hand, you have small-fry casually sharing a song or DVD with a couple friends, who might leave the watermark in, but are unlikely to get on the copyright enforcement radar screen.

That has probably been true in the past, but as we go forward it’s possible a new model may emerge that will be more conducive to the watermark- that of audience profit participation. In an ad-based profit model, for example, one way of incentivizing tracking and data collection in general may be to let the viewers actually get paid (or rewarded in some way) for watching films.