‘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.

Nothing ever came of those purported discussions, either.

More recently, thing had gone quiet on the TV front as Apple turned its attention to building up its music streaming service and squelching growing investor fears about the future profitability of iPhone sales.

On this week’s Q3 earnings call, however, the TV tease was back on.

“We hired two highly respected television executives last year, and they have been here now for several months and have been working on a project that we’re not really ready to share details about,” Cook said. But he assured analysts he “couldn’t be [more] excited about what’s going on there.”

OK, I’ll take the bait. What could it be?

It’s clearly not any kind of integrated Apple TV set, as Jobs seemed to be contemplating. Nor is it likely to be a new set-top box or dongle, as Cook had hinted at over the years.  The two executives he referred to hiring are Jamie Erlicht and Zack Van Amburg, from Sony Pictures Television, where they were responsible for “Breaking Bad,” “The Crown” and “Rescue Me,” among other series. They’re not what you would call hardware guys.

But are Erlicht and Van Amburg there to produce shows or to take another run at licensing and acquiring content from the studios?

As Cook noted on the earnings call, pay-TV cord-cutting is happening at an accelerating rate, but he believes it will accelerate even further, “at a much faster rate,” than generally acknowledged. That means there will be a lot of potential video subscribers up for grabs over the next few years.

I wouldn’t expect Apple to try to launch a virtual MVPD service, as it seemed to be angling for in the past, though. With studios and networks increasingly looking to launch their own direct-to-consumer streaming services, and the consolidation underway in Hollywood, there is likely to be a lot less premium content and established TV brands around license, and prices will be sky high.

I wouldn’t expect Apple to go the Netflix route either. With 140 million video subscribers world wide Netflix has an enormous head start. It’s true that Apple has proved it can come from behind, as it did in catching Spotify in music. But in that case, Apple was able to obtain essentially the same catalog of content as Spotify at comparable prices. Though Apple is sitting on a mountain of cash, taking on Netflix’s $8 billion original content budget and well-oiled production pipeline would be a very heavy lift with a high potential for failure.

Whatever Apple is planning its target is likely Amazon. Apple can’t have missed noticing the strategic value Amazon has derived from Prime Video and its ability to drive business for other parts of the company.

Amazon’s Echo smart speakers and Alexa voice assistant have also given it a firm and rapidly growing footprint in the home, posing a serious threat to Apple’s ambitions in the connected home market. Alexa is also helping drive subscriptions to Amazon Music, which is starting to look like less of an also-ran in a market Apple hopes to dominate.

Apple needs an answer to Amazon in the home. And that means creating a credible alternative to Amazon Prime Video.

Whatever Apple is planning, it won’t be a Netflix-link standalone video streaming service. It will instead be tightly integrated with its broader strategic goals, the way Prime Video is tied to Amazon’s.

And Apple can’t keep up the tease much longer.

AT&T’s Real Challenge to HBO

Media industry tongues are still wagging over AT&T executive John Stankey’s June 19 town hall meeting with HBO employees, in which he discussed the telco-giant’s plans for the network.

As first reported by the New York Times, which got its hands on an audio recording of the event, Stankey came off  like a bull in a china shop, seemingly admonishing HBOers they were in for a “tough year” to meet AT&T’s goal of making the boutique network “bigger and broader,” in the Times’ characterization, by cranking out subtantially more content to better compete with over-the-top services like Netflix.

“We need hours a day,” the Times quoted Stankey saying. “It’s not hours a week, and it’s not hours a month. We need hours a day. You are competing with devices that sit in people’s hands that capture their attention every 15 minutes.”

The goal, he said, was more engagement. Read More »

Shallow Harbors: EU Poised To Rewrite Rules For User-Generated Content

Almost from the day the Digital Millennium Copyright Act came into effect, copyright owners have sought to limit the so-called safe harbor protections against infringement liability the law grants to online service providers that host user-uploaded content.

But a series of lawsuits aimed at setting strict limits on the safe harbors, starting at least as early as Perfect 10’s 2002 litigation against CCBill and stretching through the Veoh cases and Viacom’s long-running battle with YouTube, largely failed in that regard and arguably made things worse for rights owners. The result was a series of court rulings reinforcing the strict and precise requirements of the notice-and-takedown system the law spells out for getting infringing content removed from online platforms.

Legislative efforts to limit or weaken the safe harbors fared no better, culminating in the spectacular crash-and-burn in 2012 of the Stop Online Piracy Act (SOPA) in the House and the PROTECT-IP Act (PIPA) in the Senate, which largely scared Congress off similar attempts ever since. Read More »

Thinking Inside The Box

Remember the Great Set-Top Box War of 2016? That was the brouhaha touched off by then-Federal Communications Commission chairman Tom Wheeler’s effort to force cable TV operators to “unlock the box” and make their video service available as a standalone feed so that third-party device makers could incorporate the service into their own platforms and within their own user-interface functions.

The proposal met fierce opposition from the TV networks and cable operators, who feared losing control over the uses and presentation of their programming, as well as from the Republican members of the FCC itself.

After a bruising, months-long fight, Wheeler was forced to pull the proposal on the eve of a planned vote. It was later dropped altogether after Wheeler left and a new, Republican-appointed chairman took over.

Yet for all the sturm und drang, a pair of recent announcements suggests that cable operators and box makers are finding ways to move beyond the controversy to achieve at least some of Wheeler’s hopes regarding innovation in the pay-TV market, if not his ultimate goal of breaking up the traditional pay-TV bundle.

At Apple’s Worldwide Developers Conference this week, the world’s biggest (by market cap) device maker announced a wide-ranging partnership with number 2 cable operator Charter Communications to incorporate Charter’s Spectrum TV app into Apple devices.

As part of the deal, the Spectrum TV app will be available on Apple’s next-generation set-top box, the Apple TV 4K, due later this year. Spectrum subscribers will be able to access “hundreds” of live channels, according to the announcement, and “tens of thousands” of video-on-demand titles through the Apple box.

While Charter has made the Spectrum app available on Roku devices since 2015, the Apple integration goes deeper. For one thing, the Apple 4K will incorporate Siri, allowing at least some functions of the box and its apps to be controlled with voice commands.

More notably, Apple’s latest operating system for the 4K box, tvOS 12, will enable the device to access a broader range of Spectrum subscribers’ program permissions and authorizations, including TV Everywhere authentication — one of the principal goals of Wheeler’s proposal. As described in the announcement, “Apple TV simply detects the user’s broadband network and automatically signs them in to all the supported apps they receive through their subscription—no typing required. Zero sign-on begins with Charter later this year and will expand to other providers over time.”

The feature would still require subscribers to get both broadband and video service from Charter, but it moves Apple TV a step closer to being a viable replacement for the traditional cable box.

Also this week, Amazon unveiled the Amazon Fire TV Cube, which combines features of Amazon’s current 4K-capable Fire TV box with those of its Echo smart speaker, including the Alexa voice assistant.

While Amazon has not announced any pay-TV service integrations with the Cube, the box does support HDMI-CEC (Consumer Electronics Control). Though still a bit dodgy, HDMI-CEC is designed to allow devices connected to a TVs HDMI ports to communicate back and forth with the TV, which means Alexa will be able to control at least some functions of compatible TVs though voice commands.

The Cube also contains IR (infra-red) blasters and comes with an IR dongle that attaches to the back of the device, giving Alexa a measure of control over a variety of cable boxes, soundbars and other TV-connected devices.

According to Amazon, the Cube is compatible with “more than 90 percent” of cable and satellite services, including boxes from Comcast, Dish, DirecTV, Charter, and Verizon.

To be sure, both the Apple and Amazon solutions leave the incumbent pay-TV operators in control of subscribers’ program permissions, as well as how that programming is packaged and presented — a grip Wheeler had hoped to loosen. And they do nothing to break up the Big Bundle.

Yet, by introducing innovations such as effective voice control they could begin to render that packaging and visual presentation moot, achieving through attrition what Wheeler tried to achieve by fiat.

 

The Weight Of The World

Shares of Netflix touched $349.29 this week, raising its stock market value to $153 billion, eclipsing Disney’s $152 billion and making the streaming service, briefly, the most valuable entertainment company in the world.

Netflix’s stock has been the top performer in the S&P 500 so far this year, surging nearly 70 percent since January. But a bullish forecast put out last Friday by Bank of America analyst Nat Schindler suggested the peak is yet to come, fueling this week’s rally.

“We believe Netflix still has a considerable opportunity ahead if it can achieve reasonable penetration levels internationally,” Schindler said in a note to clients. “Netflix will face varying levels of competition, regulation and economic conditions in each individual market it participates in, but its content scale should allow it to become the dominant streaming player in virtually all markets.”

Schindler predicts that Netflix’s global subscriber base can continue to grow by 8 percent annually, reaching 360 million by 2030, as consumers in a growing number of markets get access to broadband. Netflix currently pegs its global subscriber rolls at 125 million. Read More »

How The Creative Industries Are Using Blockchain

This was Blockchain Week in New York, formally known as Consensus 2018, an orgy of  blockchain-focused conferences, hackathons, meetups, hookups, seances and parties organized by CoinDesk that actually ran to 10 days. Yours truly was asked to moderate a panel at one such conference, the Blockchain Brand Innovation Summit put on by the CDX Academy and Columbia University Business School, and to offer a few words on how folks in the creative industries are using, or thinking of using blockchain.

I am no kind of expert on blockchain or the various technologies or mathematical concepts associated with it (crypto, consensus mechanisms, smart contracts, etc.). But in my capacity as co-founder of the RightsTech Project I’ve observed how many different sectors of the creative industries are looking to blockchain as a solution — or part of a solution — to a common set of challenges. So, in preparing for the panel, I pulled together a few “thoughts” on the question and came up with five broad use cases, or categories of use cases, for which people in the creative industries seem to be looking to blockchain. Read More »

Comcast And Netflix: We’re Chill

A story appeared this week in the the music trade Digital Music News claiming that Comcast had coerced Netflix into their recently announced agreement to bundle the streaming service in with Comcast’s pay-TV offering by threatening to impose “paid prioritization” charges on Netflix for delivering its streams to Comcast broadband customers.

The story cited an anonymous source, who pointed to a paragraph in the press release announcing the deal, which reported that “Netflix-related billing will be handled directly by Comcast, giving customers one, simple monthly statement,” as evidence of Comcast’s arm-twisting. Read More »

Set-Top Rapprochement

Back in 2012, writing for the now-defunct GigaOm, I predicted that peace would eventually breakout between pay-TV operators and over-the-top services, a process I dubbed the set-top rapprochement (I was able to find one archived example of my musings still available online).

As OTT services evolved into ever-more viable substitutes for traditional TV, pay-TV providers, I assumed, would eventually realize they were better off embracing the enemy that fighting him, lest they be displaced altogether. OTT services, I imagined, would eventually see the benefit to getting their service onto TV-input 1 in households that held onto their pay-TV service, which is to say most of them. Read More »

The Justice Department’s Fanciful Case Against AT&T-Time Warner

There is rarely anything to celebrate when two companies in the same industry decide to merge. Mergers–whether horizontal or vertical–tend to entrench incumbents and raise barriers to entry for disruptive newcomers, which robs consumers of choices.

Within the industry itself, mergers channel capital toward scale, at the expense of innovation, which can lead to stagnation and ennui.

And, while the shareholders of the companies involved may see a short-term windfall, in the long run the buyer generally just ends up inheriting whatever problems drove the seller to sell in the first place, without actually solving them.

So, there is more than ample cause to be skeptical of AT&T’s proposed $109 billion acquisition of Time Warner.

That said, however, the theory of the government’s case for blocking the merger, which went to trial this week, seems cockeyed. Read More »

Mirror Mirror

Netflix’s content chief Ted Sarandos once famously quipped that his goal was for Netflix to become HBO “faster than HBO can become us.” By that he meant, for Netflix to establish itself as a high-end global TV content brand before the reigning high-end global TV content brand, HBO, could un-tether itself from the legacy pay-TV ecosystem.

So far, Netflix is winning that race. The streaming service now reaches over 100 million subscribers worldwide, more than the entire U.S. pay-TV universe, and will spend upwards of $8 billion in 2018 producing 700 original series.

What’s more, Netflix has successfully colonized HBO’s home turf in the living room. Although today you can watch Netflix on virtually any connected device nearly anywhere in the world, the company reported this week that 70 percent of its streams are delivered to a stationary TV set, either directly via smart TV app, via streaming box, or via its growing number of integrations with traditional pay-TV platforms. Read More »

YouTube Under Fire

YouTube. What is it good for?

Not for making a living, apparently. According to new research by Matthias Bärtl of Offenburg University of Applied Sciences in Offenburg, Germany, 96.5 percent of YouTubers trying to make money from their videos won’t earn enough from advertising to exceed the official U.S. poverty line of $12,140 a year.

That’s in part due to YouTube’s low advertising rates, but mostly due to the fact that a tiny slice of videos grab nearly all of the views. According to Bärtl, 3 percent of most-viewed channels in 2016 attracted almost 90 percent of all views.

There’s a broken heart for every “like” on YouTube.

While Bärtl’s research may say more about the unwarranted expectations of most YouTubers than about anything YouTube itself is doing, another new study this week cast the Google-owned site in a more sinister light. Read More »

Disney Sees Red Over Ruling on Download Codes

Ever since sales of DVDs and Blu-ray Discs began their long eclipse behind the rise of more convenient digital alternatives the Hollywood studios have sought ways to extend the life of the high-margin disc business by finding ways to integrate disc sales with the broader digital economy.

The most systematic effort was the UltraViolet initiative. By creating an UltraViolet account, consumers could register their purchase of a DVD or Blu-ray Disc and obtain access to a digital version of the same movie, which they could then stream to connected devices without a DVD or Blu-ray drive, via participating streaming services.

Disney, which never joined the UltraViolet consortium, had its own version it called Disney Movies Anywhere (now re-christened simply Movies Anywhere and incorporating most of the former UltraViolet studios). Disney packaged its discs with an insert containing a code, which, when entered by the consumer in her online Movies Anywhere account allowed her to stream the movie through participating online services, or to download the movie onto up to eight registered devices.

DVD rental kiosk operator Redbox has likewise struggled with consumers’ declining appetite for DVDs and Blu-rays. It’s main strategy has been to keep its rental prices extremely low, which has often put it at odds with the studios, who by and large would prefer to see the low-end rental market wither away. But Redbox, too, has sought ways to make itself digitally relevant. Read More »

Modernizing Music Licensing

Just before Christmas, a bi-partisan group of lawmakers introduced the Music Modernization Act, which, among other things, would create a new blanket license for mechanical reproduction rights to musical compositions and establish a new entity to collect and distribute mechanical royalties.

The bill is meant to address one of the abiding sources of friction within the digital music streaming business. Musical compositions in the U.S. are subject to a compulsory mechanical license, meaning anyone can record a song and sell copies of that recording by sending a notice of intent (NOI) to the composition’s copyright owners and paying a per-copy royalty set by the Copyright Royalty Board.

Unlike the public performance right, however, where performance rights organizations (PROs) like ASCAP, BMI and SESAC aggregate millions of compositions and offer a blanket license covering their entire repertoires, anyone availing themselves of the compulsory mechanical license is required to identify and pay the appropriate copyright owners individually. Where the copyright owners cannot be identified or located, the user can file the NOI with the U.S. Copyright Office and the royalties paid are held in escrow until the rights owners are located.

The system worked well enough for many years when it was rare for anyone or any outlet to make bulk use of the mechanical reproduction right. With the rise of digital streaming, however, which has been held to implicate both the public performance and the mechanical reproduction right, the lack of an efficient system for administering mechanical rights has been a constant source of tension, between digital service providers like Spoity and Apple Music on the one hand, and music publishers and songwriters on the other.

That tension has frequently erupted into litigation, including the $1.6 billion lawsuit filed against Spotify in December by Wixen Music Publishing over Spotify’s alleged failure to pay required mechanical royalties.

Should it become law, the Music Modernization Act could go a long way toward easing those tensions. Since it’s introduction, in fact, the bill has gained broad support throughout the industry. In a rare show of unity, a group of more than 20 industry organizations representing music publishers, songwriters, record labels, PROs, and service providers issued a joint statement earlier this month endorsing the bill and urging its passage.

Much of the credit for the bill’s introduction and for rallying support behind it belongs to the National Music Publishers Association (NMPA) and its CEO David Israelite, who worked closely with the bill’s sponsors on Capitol Hill and helped broker the joint statement. Israelite will sit down with me for a special fireside chat at Digital Entertainment World on February 5th to discuss the Music Monetization Act, as well as other issues facing the industry, including the music industry’s notorious data challenges, and the future of performance rights licensing in the wake of recent court cases.

This week, we asked Israelite a few preliminary questions to set the stage for his fireside chat:

Concurrent Media: Last week, a group of music industry organizations jointly endorsed the Music Modernization Act, the Classics Act and the AMP Act. To what do you attribute the sudden outbreak of cooperation among so many different stakeholders?

David Israelite: We have a window of momentum and consensus that is ripe for action. Congressional leaders like Judiciary Committee Chairman Bob Goodlatte, who retires this year, has made copyright reform a priority, and with songwriter champions like Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) offering consensus bills like the MMA – and the Senate hopefully following suit – there is a real opportunity to move legislation that will significantly help the future of songwriting. Additionally, the MMA is not a wish list for music publishers and songwriters – it is a bill that took months to negotiate because it helps both the tech and music industries. No one got everything they wanted – but both sides are better off with the MMA. DiMA, which represents the biggest tech companies in the world is supportive, as are the biggest songwriter groups in the U.S.

Largely because of the momentum around the MMA – the music industry has coalesced around other music bills that will help legacy artists and producers. As I have always said – we are stronger together – and we have a great opportunity to not just help our segment of the pie – but to advance the whole creative class. After years of trying to develop and unite around reasonable reforms, it is truly exciting that today we stand together and that Congress is invested in these changes as well.

Where do you think the debate over the BMI/ASCAP consent decrees goes now in the wake of the 2nd Circuit decision?

BMI’s win sends a strong message that the DOJ cannot simply reinterpret decades of industry practice and upend the lives of thousands of songwriters. The new leadership in DOJ’s antitrust division hopefully offers a new path forward, and I believe they are looking at the consent decrees with fresh eyes. My hope is that they will ultimately abolish them altogether and give songwriters the free market that other intellectual property owners enjoy.

3) What is NMPA’s position on the various PRO database initiatives (ASCAP/BMI; ASCAP/SACEM/PRS)?

The PROs currently offer searchable repertoires. Their efforts to create a single database will bring clarity to the industry – however these initiative will take time and money. I look forward to seeing their progress in the coming months.

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