VidAngel Calls Hollywood’s Bet

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The Hollywood studios have a fraught history with third-party services that re-edit their films, typically to remove the sort of content that had earned the film an R or even PG-13 rating.

Back in the 1990s, a handful of video rental store operators, mostly in conservative Utah, began manually editing purchased copies of VHS cassettes for their customers as a service, most famously with Titanic, to remove the the naughty bits. Studios and filmmakers grumbled but manual re-editing wasn’t exactly a business designed to scale so Hollywood mostly let it be.

In the 2000s, with the advent of the DVD format, some of those same entrepreneurs figured out ways to partially automate the editing process and tried to turn it into the business. In 2000, the Utah company CleanFlicks started producing cleaned up versions of DVDs created by muting the audio at key points or removing entire sections of the audio track, then offering them for sale and rental.

This time the Motion Picture Association of America, along with Directors Guild, sued CleanFlicks on grounds that distributing the cleaned up versions violated the studios’ copyrights, and in 2006 a federal court agreed and ordered CleanFlicks to shut down.

CleanFlicks was followed by ClearPlay, another Utah-based company, that developed a proprietary DVD player that automatically deleted the objectionable content during playback, thus avoiding the need to alter the DVD itself. The studios sued anyway, again on copyright grounds, but after the dispute attracted a spotlight on Capitol Hill Congress passed the Family Home Movie Act in 2005, which made it legal to develop technology to edit a movie during playback of a DVD or on the fly while streaming, so long as the technology did not alter the movie at its source or create an unlicensed copy.

The new law effectively mooted the studios’ suit against ClearPlay, which remains in business, albeit now using software that integrates with GooglePlay and Amazon to filter streamed movies on the fly. The studios still may not love it, but to date they haven’t dared to challenge it.

In the wake of the Family Movie Act, yet another Utah-based company, VidAngel, came up with a new twist on the formula. It created a system in which customers “purchased” a DVD virtually for $20, which remained with VidAngel. Users would then “play back” their DVDs from VidAngels’ servers, which used proprietary software to edit the movies on the fly. After viewing the movie, users could then “sell” the DVD back to VidAngel for $19, creating what amounted to a $1 pay-per-view rental.

The studios sued again, claiming what VidAngel really amounted to was an unlicensed VOD service notwithstanding the nominal sale and repurchase process, and threw in an access-control circumvention charge under the Digital Millennium Copyright Act for good measure.

In December, the studios won an injunction against the company from a federal district court in California, which put the freeze, at least temporarily, on VidAngel. That injunction is now under appeal to the Ninth Circuit Court of Appeals.

The common theme throughout all of these disputes is that the studios have never legally challenged the substance of the edits made by the services directly (although DGA has). Instead, they have charged the services with one flavor or another of copyright infringement, giving them grounds to shut the services down without having to go on the record opposing the active filtering of their movies.

In oral arguments before the Ninth Circuit in the VidAngel case in fact, the attorney for Disney, former solicitor general Donald Verrilli, insisted the studios are not opposed to filtering per se, merely to filtering by illegal means. He even gave a shout out to ClearPlay, noting “There’s technology out there … that applies filtering to a licensed stream,” he said. “It connects up with Amazon or Google … who have actually done what they should’ve done and gotten a license for public performance rights.”

This week, VidAngel called Verrilli’s bet. The company announced the launch of a new service for viewing cleaned-up streamed movies and TV shows that it claims avoids the legal infirmities of its original system and should therefore not be subject to the court’s injunction.

Instead of the virtual sale and re-purchase of DVDs the new system is a cloud-based service that integrates with licensed streaming services and filters the content on the fly based on options set by the user. VidAngel relies on crowd-sourcing to tag movies and TV shows according to its filtering paradigm.

Rather than integrating directly with a streaming service, as ClearPlay does, VidAngel asks users to provide their passwords for whatever service they already subscribe to. When the user requests a movie or TV show from VidAngel’s menu of tagged titles VidAngel’s servers then log on to the appropriate service using the user’s credentials and applies the filters as the movie streams.

VidAngel CEO Neal Harmon said the new platform will initially support Netflix, Amazon and HBO Now, with Hulu, iTunes and Vudu to follow.

The company is now asking the court to rule on whether the injunction applies to the new platform.

If the court rules the new service falls outside of its infringement-based injunction it could blow the studios’ cover, and force to declare just what it is about VidAngel’s business they really object to. Is it the filtering, or merely the infringement?

One tell will be whether the studios try to pressure Netflix and Amazon to block VidAngel from access those services. Neither has said anything yet about the new platform, but they could conceivably block VidAngel on grounds that its users are violating their terms of service by sharing their passwords, or by making up some other grounds.

Given Netflix’s history of lax enforcement of password-sharing, however, it’s hard to imagine that would be something it would initiate itself. If Netflix suddenly cracked down on sharing passwords with VidAngel it would be a fair bet it wasn’t their idea.

Your move, Hollyood: Raise, call, or fold.

 

 

 

M&E Forecast: Slowing Growth, Tighter Choke Points

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Two five-year forecasts issued this week together paint a picture of a much tougher business environment facing media and entertainment companies over the next half decade.

According to PwC’s annual Outlook report, the media and entertainment industries are nearing a revenue “plateau,” particularly video-centric industries, as many historical growth drivers are running out of steam. Worldwide, PwC expects M&E revenue to rise from $1.8 trillion in 2016 to $2.2 trillion in 2021, representing a compound annual growth rate of 4.2 percent– a ratcheting down from the 4.4 percent CAGR it forecast last year.

For the U.S., revenue is projected to grow even more slowly, increasing from $635 billion in 2016 to $759 billion by 2021, for a CAGR of 3.6 percent. Read More »

Fool Me Twice: How Spotify Could Become the New iTunes Store

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Back in 2003, as the music industry was reeling from widespread, Napster-fueled piracy, Apple CEO Steve Jobs made the record labels an offer they couldn’t resist: Give me a license to sell individual tracks but let me sell them cheap enough to be a viable alternative to free, and I’ll wrap them in DRM for you in a way that consumers will accept, so they can’t be copied.

The labels leapt at the deal and the $1.00 download became the new atomic unit of the business.

Though thrilled at first to have an answer to piracy the record companies eventually came to rue the arrangement once they figured out that Apple was using those inexpensive downloads to supercharge the market for its high-margin iPods and later iPhone hardware, and was reaping far more of the value being created by their music than they were. By then, however, they had become captive to Apple’s ecosystem: Thanks to Apple’s proprietary DRM, the only way to sell music to iPod users — at the time the largest segment of the portable music-player install base — was through iTunes, under terms effectively dictated by Apple. Read More »

Get Ready to Rumble; FCC Launches Net Neutrality Rollback

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Here’s how high tension is already running over the Federal Communications Commission’s proposal to undo it’s own net neutrality order: At Thursday’s open meeting where the commission voted 2-1 to proceed with the first phase of the rollback, with security on high alert over online threats aimed at commissioners, security personnel “manhandled” long-time Capitol Hill reporter John Donnelly and removed him from the building for approaching commissioner Michael O’Reilly in a hallway and attempting to ask him a question outside of an official press conference.

FCC Commissioner Mignon Clyburn

Tensions are only likely to get higher as the proposal moves forward. This week’s vote kicks off at least a three-month period of pubic comments, during which the commission can expect to be deluged with input, ranging from the substantive to he hysterical. Democrats on Capitol Hill, meanwhile, are vowing “all out war” to prevent any rollback. Read More »

Competing With Paid

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The rise of subscription streaming services, in both the music and video industries, has given the lie to the old complaint that consumers won’t pay for content online. But to many in the music industry, to say nothing of streaming investors, too many of them still don’t.

Ad-supported free streaming services remain the bête noire of the record labels and music publishers. They rail against YouTube, even as they’re making deals with it, and have fought to restrict the copyright safe harbors that allow YouTube to profit from music posted without license by users. They’ve maintained pressure on Spotify to shift more of its free users to its paid subscription tier, a tune now echoed by potential investors as Spotify eyes an IPO or public listing of its shares, and have begun to restrict when new releases are made available on the service’s free tier. Read More »

The Other Pay-TV Bundle

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Hulu’s virtual pay-TV service went live in selected cities this week, offering a basic bundle of 60 channels for $40 a month ($73 a month with enhanced DVR capability). The launch, still officially in beta, brings to six the number of live, multichannel over-the-top services now available, including DirecTV Now, Sling TV, Playstation Vue, YouTube TV, and Fubo TV. More are likely on the way.

But while Hulu was rolling out, many traditional pay-TV providers were rolling over. According to an analysis by MoffettNathanson analyst Craig Moffett, based on publicly reported results and estimated results for privately held companies, traditional pay-TV providers collectively lost at least 762,000 video subscribers in the first quarter of 2017, more than five times their losses in the same period last year.

“For the better part of fifteen years, pundits have predicted that cord-cutting was the future. Well, the future has arrived,”  Moffett wrote in his latest quarterly overview of the industry. “It leaves the Pay TV subscriber universe shrinking at its worst ever annual rate of decline (-2.4%). And it was the worst ever accelerate in the rate of decline (60 bps).”

The news spooked investors, who sent shares of media companies tumbling. Read More »

From Fake News to Real Murder: Facebook’s Incentive Problem

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Fake news did not originate with Facebook, nor with the 2016 presidential campaign. Planting damaging stories of dubious provenance about a political opponent in the newspaper  is a tradition nearly as old as newspapering itself. And spreading false rumors is as old as human society.

But as we saw in last year’s election, Facebook and other social media platforms have elevated merely spurious information into a weapon of mass dysfunction. During the final three months of the 2016 campaign, the top 20 fake news stories circulating on Facebook racked up 8,711,000 shares, reactions, and comments on the platform, including such classics as “Pope Endorses Donald Trump” (960,000), and “FBI Agent Suspected in Hillary Email Leaks Found Dead in Apparent Murder-Suicide” (560,000).

BuzzFeed, which compiled those data, notes that those 20 fake stories attracted nearly 1.5 million more instances of engagement than the 20 top-performing stories 19 major news outlets over the same period. But the issue here isn’t so much real vs. fake but the role that Facebook’s massive scale played in encouraging the production of fake stories. Read More »

The Net Neutrality Paradox

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One of the more unfortunate wrinkles in the long debate leading up to the Federal Communications Commission’s 2015 Open Internet Order, better known as net neutrality, was its increasingly commercial focus. There were important civil liberties issues at stake, to say nothing of the interplay of engineering and regulation of critical infrastructure and the private ownership of public goods. But much of the public debate boiled down to an argument over streaming — Netflix streaming in particular.

That was due in no small part to the efforts of Netflix founder and CEO, Reed Hastings, who made himself and his company the poster-children of the net neutrality cause by loudly proclaiming Netflix’s oppression at the hands of ISPs looking to impose interconnection fees on the streaming service.

Although net neutrality proponents eagerly embraced Netflix’s cause and Hastings’ pubic advocacy they worked to color the issue as essentially a commercial dispute between different types of service providers, which, paradoxically, is actually an argument against what the FCC did. Disputes between buyers and sellers are not really the FCC’s bailiwick; that’s more a matter for the Federal Trade Commission and the antitrust division of the Justice Department. Read More »

Amazon in Good Field Position After NFL Deal

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Amazon won the auction for live-streaming rights to this season’s Thursday Night Football franchise with a bid of $50 million dollars for a package of 10 games. That’s 5 times what Twitter paid last year for essentially the same deal: Amazon will share the games with NBC and CBS and will stream the networks’ feeds, including their ads. Amazon will also be able to sell a handful of ads per game itself.

The games will be available for free to Amazon Prime members.

Although the 5X increase in price is impressive — and was probably too rich for Twitter — $50 million is still pretty small beans, both for the league — whose deals with the broadcast networks run into the billions — and for Amazon, which has $20 billion on its balance sheet. For both, it’s largely an add-on business at this point.

For the NFL, streaming is still largely an experiment aimed at finding a way to reach cord-cutters and out-of-home viewers, and to test the viewership waters outside the U.S., not to supplant its traditional broadcast deals. For Amazon, the NFL deal is a way to enhance the value of a Prime subscription and to attract to new subscribers at a relatively modest price. Read More »

Courts and Congress Put Spotlight on Copyright Office

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The federal Ninth Circuit Court of Appeals handed broadcasters a major win this week in their long-running legal battle with Aereo-clone Film On. A unanimous three-judge panel overturned a lower court ruling, which had held that FilmOn was eligible for the compulsory license under Section 111 of the Copyright Act that allows “cable systems” to retransmit copyrighted programming contained in broadcast signals without needing to get permission from the copyright holders.

In overturning that ruling, the circuit court closed an apparent loophole created by the Supreme Court in its 2014 ruling against Aereo, in which it held that Aereo was infringing broadcasters’ public performance right by retransmitting broadcast signals over the internet. In addressing whether Aereo was “transmitting” broadcast signals as defined in the statute, Justice Stephen Breyer reasoned that Aereo was acting, for all intents and purposes, like a cable system, which unambiguously “transmits” a signal, and therefore Aereo required a license under the statute’s Transmit Clause.

Maria Pallante

FilmOn seized on that reasoning to argue in its defense against a lawsuit brought by Fox, that it should be treated as a cable system for purposes of the compulsory license, which is a related but legally separate issue under the law. Several courts rejected that argument (FilmOn was sued in multiple jurisdictions) but one judge, U.S. District Court Judge George Wu, accepted it, ruling in Aereo’s favor, which led to Fox’s appeal to the Ninth Circuit. Read More »

More Than One if Five Broadband Households Have No Pay-TV Service, Study Finds

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You don’t have to look far these days for news on cord-cutting. According to a report out this week from Leichtman Research Group the largest U.S. pay-TV providers lost a combined 795,000 subscribers in 2016. According to a report out last week from TiVo the share of cord-cutters who have dropped service within the previous year reached 19.8 percent in the fourth quarter, the highest ever registered, suggesting the phenomenon is accelerating.

In yet another report released this week, The Diffusion Group turned the telescope around and looked not at how many pay-TV households have dropped their service but at the number of U.S. broadband households that are going without pay-TV service. If anything, the view was even worse for the pay-TV industry.

According to TDG’s survey, 22 percent of the 100 million households that subscribe to broadband — some 22 million homes — do not have pay-TV service. That’s up from 9 percent of the 85 million broadband subscribers in 2011, or 8 million households, and up from 18 percent just since the beginning of 2016. Read More »

Broadcasters’ Goal-Line Stand

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CBS Corp. chairman and CEO Les Moonves has long been one of broadcast television’s most indefatigable boosters, so it was no great surprise this week to hear him tell an investor conference that he expects the traditional broadcast networks to remain the mainstay of the National Football League’s TV rights package when the current contract is up in 2022, despite the near-certain interest from Facebook, Google, and other aspiring digital TV outlets.

“Look, the tech giants all want to be involved in the NFL. It’s the best product in television,” Moonves told the Deutsche Bank 2017 Media and Telecom Conference. “There’s going to be a lot of activity. As we head toward that large deal, I think these companies are going to be part of it, [but] I think the NFL still believes in the sanctity of broadcasting.”

Moonves was also likely correct in his assessment. Despite the accelerating pace of cord-cutting, and the ongoing unbundling and rebundling of the pay-TV ecosystem, and declining overall viewership the broadcast networks remain atop the ratings heap. While all of those trends are likely to accelerate further between now and 2017, the broadcast networks are likely to remain the NFL’s most efficient path to the largest audience, however those channels end up being delivered. Read More »

Plenty of Bundles, Not Much Joy in Linear OTT

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YouTube this week formally unveiled its long-gestating linear over-the-top services, YouTube TV, which will feature a skinny-ish  bundle of about 40 live channels for $35 a month. When it begins rolling out later this year in select cities YouTube TV will join Dish Network’s Sling TV, AT&T’s DirecTV Now, and Sony’s Playstation Vue in the linear OTT sweepstakes, and will soon by joined by a previously announced entry by Hulu and perhaps one from Apple.

As with those other services, however, the lineup of channels in YouTube’s bundle is a bit of a hit and miss affair at this point. Subscribers will get all the major broadcast networks, along with ESPN, USA, Bravo, Fox News and MSNBC, but no CNN, Turner or TBS, and no Viacom-owned networks.

Sling TV will get you CNN and Turner but the broadcast networks are only available in select markets, and again, no MTV, Nickelodeon or Comedy Central.

DirecTV Now will sell you a big bundle of 100 or so channels at the skinny-bundle price of $35 a month, but so far AT&T hasn’t figured out how to deliver it to you without its crashing. Read More »

A Chunk of History: The Medieval Roots of Digital Publishing

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One of the wonderful paradoxes of the digital era of media is its retrograde quality. We tend to think of inventions like the internet and peer-to-peer digital networks as apotheoses of modern communication, but their economic impact on many media industries has been to unravel their modern industrial structures and to resurrect many of their pre-industrial, folk foundations.

Nowhere has that been more true than in the case of music. MP3 files, P2P networks, and now streaming have blown up the multi-song bundle we called the album — and the profit margins that came with it — and restored the single to prominence, as it was in the days before the invention of the long-playing record (LP).

The much-derided phenomenon of unlicensed “sharing” of music over P2P networks also carries echoes of music’s past. Until the Gramophone and the Phonograph made private performances of music practical, music was almost always shared, in the sense that it was usually experienced as part of a public performance. While the industrial technologies of recording and playback made private performances lucrative the instinct to share music never really went away. Read More »