The Last Picture Show?

The U.S. Justice Department is preparing to end the so-called Paramount consent decrees that have long barred major movie studios from owning movie theaters.

The decrees have been in place since 1949, the result of a series of anti-trust actions brought by the department against various studios over restrictive booking practices, including the favoring of their own theaters over others in distributing their movies and “block booking,” in which studios forced theaters to book an entire slate of films to get the highest-profile releases.

In announcing the move, the head of DOJ’s anti-trust division, Markan Delrahim, noted that technology and market realities have long-since left the original purpose of the decrees behind, as streaming and other non-theatrical forms of distribution have grown more important to Hollywood’s bottom line and reshaped how people watch movies.

“We cannot pretend that the business of film distribution and exhibition remains the same as it was 80 years ago,” Delrahim said. “Much of our movie watching is not in theaters at all.”

The news briefly put a charge into the shares of the major theater chains as investors bet on potential acquisition offers. But most analysts agreed the studios are unlikely to start buying up brick-and-mortar theaters, for many of the same reasons highlighted by Delrahim.

Yet, as many commentators have noted, while the market and technology may have evolved since 1949, the fundamental problem the consent decrees were meant to address — self-dealing in the distribution of movies — hasn’t gone away. It has simply changed venues along with the movies.

With streaming services like Netflix, Amazon Prime and Hulu relying increasingly on exclusive original content to lure and keep subscribers, and the parent companies of Disney, Fox, Warner Bros. and Universal hoarding their own content as they role out their own direct-to-consumer platforms, restrictive distribution practices are alive and well.

“The consent decree may be outdated, but the idea that there’s danger in someone bulk-producing content and then controlling the distribution is not outdated — it’s very current,” Public Knowledge legal director John Bergmayer, told the Washington Post. “We should be taking the concept behind the consent decree and applying it to that.”

Ironically, the Justice Department need only look to its own recent history to find precedent for just such an approach.

The department’s (ultimately unsuccessful) case for blocking AT&T’s merger with Time Warner rested largely on its contention that the merger would give AT&T both motive and means to extort higher prices from competing pay-TV distributors to benefit its own DirecTV service by threatening to withhold “must have” programming, thereby ultimately driving up prices for consumers.

I wrote at the time that the DOJ’s case was not a strong one overall (and may even have been influenced by President Trump’s animosity toward CNN). But the notion that vertical integration in video between content producers and distributors is potentially problematic at least echoed the concerns the department raised in its earlier, successful effort to impose conditions on Comcast’s merger with NBCUniversal requiring Comcast to offer NBCU content to competing MVPDs on fair terms (those conditions expired in 2018).

The conditions surrounding cable TV distribution and streaming are not entirely parallel. Cable providers, for the most part, are not producing original programming for use on their own platforms in competition with the studios and networks as Netflix and Amazon are.

But if the department were genuinely interested in promoting innovation and competition in the distribution and exhibition of movies and other programming, allowing the studios to own theaters while turning a blind eye to the effects of vertical integration in the streaming business is not the way to do it.

Proprietary distribution strategies ultimately restrict choice and raise prices for consumers by forcing them to subscribe to multiple, all-or-nothing streaming services to watch the the various movies and shows they want to see.

As Derek Long, a professor at the University of Illinois at Urbana-Champaign and an expert on the decrees, put it, “What is streaming if not the ultimate form of block-booking — making consumers take the good with the bad? You can get rid of the consent decree, but you’ll still have the same issues from the 1930s that made them necessary.”

It also has the effect of prevent the emergence of independent operators who might be able to devise innovative packages and consumer value propositions by aggregating content from multiple studios and suppliers, much as Netflix itself used to do.

DOJ may think it’s moving forward by eliminating the old consent decrees. But it’s really going backwards.

Spotify Works the Margins

In its first-quarter earnings report, Spotify missed Wall Street’s earnings target by a whopping $0.53 a share, despite beating expectations for both revenue and paid subscriber growth.

The streaming service posted a net loss of $0.90 per share, compared to the consensus estimate of $0.37, even as top-line revenue grew by 33 percent year-over-year and beat the Street by 3 percent.

Part of the shortfall could be attributed to various promotion campaigns the streaming service ran during the period, which included discounted service bundles offered in partnership with Hulu. But the stark disconnect between revenue and earnings underscored a long-standing concern over Spotify’s core business model.

“The most important thing is [Libra] will enable paying for things digitally in many of the places around the world where those kind of methods just doesn’t exist. A service like Spotify, you can imagine what would happen by allowing users for instance to be able to pay artists directly,”

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Spotify’s Crypto Strategy

Given the volume of chatter in the music business around blockchain and cryptocurrencies, this week’s confirmation that Spotify has signed on to Facebook’s planned launch of a cryptocurrency-based payment system called Libra will no doubt set tongues wagging anew.

So far, Spotify is the only music or media-related organization among the launch partners, but its presence and prominence is sure to fuel speculation about the intentions of other steaming services and media providers regarding blockchain.

In truth, though, the move likely reveals more about Spotify’s own ambitions that about the future prospects for blockchain in the music business.

For starters, Libra isn’t very blockchain-y. Transaction data on Libra will not be bundled into blocks and will not be chained, although transactions will be recorded sequentially by time-stamp. Nor will there be any mining. Libra coins will be backed by a reserve made up of fiat currencies and fiat-denominated instruments and will be issued by the Libra Association, a not-for-profit foundation being established in Switzerland, much as a central bank controls the fiat monetary supply.

In lieu of miners, Libra will have “validator” nodes, and consensus will be established by an internally developed protocol rather than by a proof-of-work or proof-of-stake type consensus mechanism used by fully decentralized blockchains like Bitcoin and Ethereum.

The Libra blockchain, in fact, will be permissioned, at least initially, and the right to run a node on the network will run you at least $10 million.

With no mining as an incentive, node operators will be rewarded by being granted separate, registered Libra Investment Tokens, which will appreciate in value based on earnings from the reserve.

Not exactly how Satoshi drew it up.

There are legitimate reasons to design the system that way. Mining is a slow, resource-intensive process that constrains through-put on other blockchains and undermines their scalability. Any system meant to operate at Facebook scale will need to be faster and more scalable than even Ethereum and other blockchain 2.0 protocols.

Pegging Libra coins to a reserve of fiat-based assets will enhance price stability and discourage speculation, while assuring users that they will easily be able to convert their coins to fiat.

Facebook is also launching a crypto-wallet for use with the service called Calibra, which it has registered with the U.S. Treasury Department as a money service business and will comply with anti-money laundering and know-you-customer regulations.

Still, the design smacks a bit of Facebook trying to slip into the financial services business through the back door without being licensed by dressing Libra up in the buzzy trappings of blockchain and crypto.

European financial regulators, in fact, already think they smell a rat and are calling for quick action to review Facebook’s plans.

So what’s Spotify’s angle?

In a blog post Tuesday, Spotify’s chief premium business officer Alex Norström framed it as a way for the streaming service to reach audiences that lack ready access to traditional banking and financial services.

One challenge for Spotify and its users around the world has been the lack of easily accessible payment systems – especially for those in financially underserved markets. This creates an enormous barrier to the bonds we work to foster between creators and their fans. In joining the Libra Association, there is an opportunity to better reach Spotify’s total addressable market, eliminate friction and enable payments in mass scale.

That is no doubt true. But it’s also probably not the whole story.

For all its crypto-compromises, Libra still offers elements of a peer-to-peer payment system, albeit within a walled garden. Any Facebook user can sign up for a Calibra wallet and start making and receiving payments directly.

The open-source Move programming language Libra is written in also supports smart contracts, which means users will be able to create their own applications and tokens.

It’s not hard to imagine a future integration in which artists are able to upload their music directly to Spotify, tie it to a smart contract, and receive payments for streams immediately via Libra. Married to the potential reach of Facebook, that could make for an attractive alternative to the traditional record business for artists.

Spotify, in fact, has already been learning and experimenting with how to marry a creator ecosystem with its distribution platform on the podcasts side since its acquisitions of Anchor and Gimlet Media.

Artists and songwriters could also expect to see a bigger piece of the per-stream pie than they get under the current system, especially if Spotify is successful in its effort to rollback the Copyright Royalty Board’s recent rate-setting.

Further, for a publicly traded company like Spotify, Libra’s connection to the traditional financial system is a feature, not a bug. Exposing part of its revenue to the extreme volatility of Bitcoin and other decentralized cryptocurrencies would be an accounting and reporting nightmare, and a serious risk to its valuation.

Finally, Spotify is likely to have Libra to itself among the major music streaming services, at least for a while. It’s hard to imagine Amazon, Apple or Google being in a hurry to integrate their services with a Facebook payment system. So, if Spotify were to make a serious play at luring artists away from the traditional label system, it would be unlikely to face much competition from its largest current rivals.

‘Friends’ In Need

Who needs “Friends” more, Netflix of AT&T’s WarnerMedia? 

That was the question put by this week’s headline-grabbing deal in which Netflix agreed to pay $100 million to keep streaming rights to the venerable sitcom for another year. After that, Netflix may still get access to Rachel and the gang but the series is also likely to become available on AT&T’s planned direct-to-consumer streaming service as well.

“Friends” is obviously a valuable series to Netflix, or it would not have paid so handsomely for non-exclusive rights. But calculating that price would have been a fairly straight forward process for Netflix. It knows how many of its subscribers watch the series and how often, and it can calculate its value for attracting new subscribers. For AT&T and WarnerMedia, not so much.

AT&T plans to launch its direct-to-consumer service at the end of 2019 and plans to populate it largely with its own programming, at least in the early years. While Warner has a vast library of content, going back decades, from its many film and television production studios, it doesn’t calculate the value of the movies and TV series in that library the same way Netflix would. 

Like Netflix, AT&T is in the business of selling subscriptions: to wireless service, broadband, landline phone service, and more recently pay-TV through its acquisition of DirecTV. WarnerMedia, however, is built around selling content, in discreet units, for limited times. It has to reckon not just how much a piece of content is worth, but where it worth the most, as AT&T CEO Randall Stephenson acknowledged this week

Is “Friends” worth more in broad distribution through platforms like Netflix, or being kept out of circulation to be used as an exclusive to drive subscriptions to the new streaming service? 

And “Friends” is a fairly easy case. The series is more than 20 years old and, presumably, its costs have long-since been recouped, apart from residuals. So in a sense, AT&T and Warner are playing with house money. 

AT&T also spent $104 billion to acquire Time Warner, including assumption of debt, and now has more than $180 billion in debt on its balance sheet. It can’t really afford to leave a cash cow like “Friends” in the barn without fully milking it. 

But not every series is going to command the sort of premium “Friends” can pull in for a non-exclusive deal. AT&T is going to have to make a tricky calculation for every piece of content WarnerMedia owns, and for every new production it finances: Is this movie or series worth more in distribution, or driving subscriptions? 

That could make for some difficult investment decisions, to say nothing of negotiations with potential investors, creators and other rights owners in a new piece of content. 

Over time, as AT&T collects more direct consumer viewing data, that calculation could get easier, or at least more reliable. But there’s a long way to go between now and then. 

Apple’s Latest TV Tease

For the best part of a decade, the heads of Apple, including Steve Jobs and current CEO Tim Cook, have had a side-career teasing fanboys and analysts about a major move into TV and video.

Jobs famously told his biographer, Walter Isaacson, that he “finally cracked” the secret to re-engineering the TV viewing experience, and just weeks before his death called tech columnist Walt Mossberg to say he had figured out how to “remake” television.

Whatever it was Jobs had figured out, though, he took it with him to his grave because nothing like what Jobs described to Iasaacson was ever released.

That didn’t stop his successor, Cook, from continuing the tease, however. For several years after, Cook made a habit of dropping hints about some new TV project or another, and stories leaked out of Hollywood every six months or so that Apple content chief, Eddie Cue, was talking with the studios and TV networks about licensing content for some sort of new Apple video service.

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