A serious source of current woe over production of content is the difference between pay-to-experience and advertising-supported business models. In ad-supported, the product is the viewers’ eyeballs, which are sold to the marketer. Thus the amount of money available for content production is limited to the value the eyeballs have to advertiser, which may be less than the value which the viewer as a consumer would be willing to pay for the experience.

Pay-to-experience is limited by the problems of free-riding (a.k.a. piracy) plus the standard tricky problems of assessing the market for a product, especially when success will automatically make it a prime target for free riding.

Another possible model, of course, is patronage, in which groups of art lovers get together to subsidize the content. This involves many issues of coordination, in that A is willing to commit only if B, C, and D do so, and they might agree only if A and E are already on board, and so on. (This is why salespeople and entrepreneurs get the big bucks, and are worth it.)

GroupOn addresses the commitment problem by the mechanism of contingency; a deal is offered, but it is contingent on having a specified number of takers sign up. You commit, and if the specified number of others do likewise, the deal is on. If not, not. So the offeror is guaranteed the necessary scale and the customer runs no risk.

Now, fans of the 2002 sci-fi series Firefly are adapting this collective action approach to bringing back their show. It started when the Science channel announced a showing of the 12-episode series, starting in March, and escalated when leading actor Nathan Fillion opined that he would love to pick up the role of Captain Malcolm Reynolds again and that if he had the money he would buy the rights and put the on the Internet. Others involved in the show chimed in with their support.

That triggered the fans, who started a website HelpNathanBuyFirely, plus a Facebook page, which in a few days has collected 65,000+ “Likes”, including me. No money is yet changing hands, or even being promised, and no real commitments from the participants has been obtained. (One problem – Fillion currently stars in the current successful show Castle.)  However, the anonymous promoters hope to generate interest, and perhaps move things forward.

The movement presents both opportunities and problems for Fox, which owns the rights.  One approach would be to partner with the enterprise, and tell the entrepreneurs that if they get a sufficient level of fan commitment, then Fox will make the series. Another would be to assume that the level of support is impressive enough to demonstrate the existence of a viable market and just go ahead. Hollywood is famous for its complicated and innovative dealmaking, so surely something is possible.

But there are two things that Fox cannot do – block the whole thing or do nothing.

If there is serious fan interest in a property, and the owner does not pick it up, then the possibility that some other entrepreneur in some far off place such as China will take advantage becomes acute. And at that point, Fox’s property rights claims begin to shred – how does a studio say “yes, fans want it and are willing to commit money, and we don’t care; we will neither do it nor let anyone else to it.”  Its legal right to do this clear, but at that point even a property-rights hawk such as moi jumps the ship and buys the Chinese DVD.  It was the record companies failure to respond to the increased efficiencies of the Internet that opened up the space for Napster and P2P, and the continuing difficulty of getting old material via legitimate channels is a problem for defenders of property rights.

Property law profs are fond of confounding us hawks with a hypothetical in which some billionaire buys a Van Gogh for $100 million and then declares his intention to have it cremated with him. In the hypo, the student is the State AG – what, if any, action does he/she take? The point is that property rights are embedded in a set of assumptions about the productive use of the property and that the owner does get to be a total dog in the manger. (This issue will come up eventually in the context of all the environmental easements that have taken property out of use, largely for tax scam reasons, but that is tomorrow’s legal question rather than today’s.)

From the standpoint of defending intellectual property rights, there is a good side, though. It seems fair to guess that the people who sign on with Captain Mal and his crew (“Browncoats”) are largely techie types who are prone to support such anti-IP organizations as the Free Press and EFF. But the chance the Fox will do nothing is virtually zero, unless Fox simply sees no way to get a return on the investment because of the impossibility of monetizing the result.  (And if that is the case, the Chinese entrepreneurs will give it a pass, too.)  So it is good for the techies to have some skin in the game, for them to see that a system in which the property rights in Firefly cannot be protected is one in which they, personally, will lose something they value. That will drive home the point that we are all in this together, and that protecting IP is in everyone’s interest.

As for me – as soon as HelpNathanBuyFirely opens its books I will commit to buy any resulting DVD. And I will throw in a bit extra if they promise to add Castle’s Detective Kate Beckett to the cast.

[Cross-posted at Digital Society]