The shield and the sword

The Media Wonk The Senate Judiciary Committee held an executive business meeting (i.e. markup) last week where members debated the Free Flow of Information Act of 2013. Modeled on state “shield laws” the bill would create a federal shield for journalists protecting them against being compelled to testify about their sources by a federal court. But according to a McClatchy report, the bill had to be held over to the next meeting after the senators were unable to agree on a definition of “journalist” to be protected by the law.

Here’s hoping it continues to confound them.

Don’t get me wrong. As a one-time (albeit small-time) accredited journalist the Media Wonk very much wants to be sympathetic to bill’s aims. The Obama Administration’s rough and disgraceful treatment of reporters caught up in its Ahab-like pursuit of leaks and leakers really does need to stop, or be stopped. But a federal shield law, particularly now, is a very fraught way of trying to do it. Read More »

Welcome readers of The Media Wonk

If you were searching for the Media Wonk blog you have been redirected here. I’m glad you found us.

Concurrent Media is the new online home of Paul Sweeting (that’s me), founder and editor of The Media Wonk blog. The entire Media Wonk archive has been incorporated into the new site and can be browsed and searched here. And while you’re here, click on over to the Concurrent Media home page and check out my latest stylings.

The Media Wonk blog made its first appearance in 2006, as part of Content Agenda, a website owned by Reed Business Information. Content Agenda went dark in 2009, when Reed decided to terminate most of its business publishing activities, and The Media Wonk blog was reborn as a standalone site.

In August 2010 I launched a new venture, Concurrent Media Strategies, LLC, which provides strategic business analysis and editorial services to clients on digital media, technology and public policy issues. The Concurrent Media website serves both as the online face of the company and the place where I now do most of my media-related blogging. In December 2010, The Media Wonk web site was shut down as a standalone blog and its archives moved over here.

I’m grateful to all those who have followed my writings over the years and have made their way to the new site. Welcome.

YouTube Court: Viacom Dios

The lesson for content owners from yesterday’s smackdown of Viacom by U.S. District Court Judge Louis Stanton in its lawsuit against YouTube/Google should be clear (which, of course, is no guarantee it will be): stop bringing DMCA  safe-harbor suits against online service providers. It’s not working, and it’s past time to get on with plan B.

The Viacom case can now be added to a string of cases –beginning with Perfect 10 v. CCBill in 2007 and including Io Group v. Veoh (2008), and UMG v. Veoh (2009) — in which courts have refused to impose liability or additional procedural requirements on service providers beyond the strict language of the § 512 (c) safe-harbor provisions. Though The Media Wonk is not a lawyer, it sure seems like there’s a pattern developing here, and it’s not a favorable one for the content industries.

Unlike Grokster and LimeWire, which, as Judge Stanton noted in yesterday’s opinion, involved peer-to-peer file-sharing networks that are nowhere addressed in the DMCA, Veoh and YouTube are precisely the sort of web hosting services Congress envisioned and intended to protect from liability in drafting the DMCA, as Stanton also noted. He went to great length, in fact,  to emphasize the point, giving over whole pages in his opinion to long excerpts from the 1998 House and Senate committee reports on the law detailing exactly how Congress intended the language in § 512 of the statute to be construed by courts. The only real question was whether the standard industry practices YouTube followed regarding notice-and-takedown and the handling of repeat infringers meet the procedural requirements spelled out in the statute to qualify for safe-harbor protection. Like the Veoh courts before him, Stanton said they do.

Not surprisingly, Viacom didn’t see it that way. In a statement issued after the decision was handed down it seemed to suggest that it has YouTube just where it wants ’em:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions.   We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.  After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.

The best case scenario for Viacom would obviously be a win in the Second Circuit, which carries a lot of weight in judicial circles on copyright matters. That might create enough of a split with the Ninth Circuit, which handed down the Perfect 10 case and where both Veoh courts are located, to tempt the Supreme Court to take up the issue at some point and give content owners a favorable ruling.

I can’t speak definitively to the legal likelihood of that scenario actually playing out. But again, to a layperson it seems like a long shot. Four courts have now pointedly refused to impose liability or new procedural requirements on service providers beyond the strict language in the statute, and zero courts have agreed to.

It’s possible, of course, that things could go differently in the Second Circuit, and the court (or the Supreme Court) will create a new legal standard in which a general awareness that unfettered copyright infringement is occurring on a platform is sufficient to disqualify a service provider from the § 512 safe harbor.

My question is: how much would that actually help Viacom? What sort of remedy, apart from monetary damages, would the court impose? It’s not going to erase the safe harbor language from the statute, so the principle of limited liability for service providers would remain. The best case for Viacom would be if the court were to create some new procedural requirements for service providers to qualify for the safe harbor, such as mandatory filtering. That would give Viacom and other content owners far more leverage in negotiating with service providers over the use of their content.

Since filtering is nowhere mentioned in the statute, however, that seems like a heavy lift for the court. If content owners really want mandatory filtering, I think they’re going to have to go to Congress.

That would mean reopening the DMCA, however, which means opening a gigantic can of worms from which all sorts of unpredictable outcomes could crawl. In the meantime, deals with YouTube and other online service providers that could profit Viacom, however imperfectly, are not getting cut.

It’s possible that, some day, Viacom will get a better deal out of the courts, if not from the YouTube case than from some other. But hoping for a three-way bank-shot is not much of a business plan.

Kaleidescape leaves Hollywood blu in the face

Well, here we go again. With its five-year litigation with the DVD Copy Control Association over its original DVD jukebox still not resolved, Kaleidescape Systems on Tuesday announced plans to roll out a new disc player that will import high-def movies from Blu-ray Discs onto Kaleidescape home media servers, along with conventional DVDs and CDs. The new player, the M500, won’t actually ship until May 18, which gives the studios (or the Advanced Access Content System Licensing Administrator, the Blu-ray equivalent of DVD-CCA) a week to try to file a new suit and persuade a court to issue a temporary restraining order preventing the M500 from shipping.

Assuming they decide to sue, that is. On the face of it, Tuesday’s announcement by Kaleidescape would seem to invite a very similar lawsuit as the one DVD-CCA filed against the company back in 2004. As it did with its original DVD system, Kaleidescape secured all the necessary technology licenses needed to build a Blu-ray player, including a license for the AACS copy-protection system. Also as with the CSS copyright protection system for DVDs, Kaleidescape maintains the AACS license does not, as a legal matter, prohibit the copying of Blu-ray discs, at least not in the manner by which Kaleidescape creates a hard-drive copy of the movie.

In the case of DVDs, of course, the DVD-CCA, which oversees the CSS license, had a very different interpretation of what was and was not permitted under the license agreement, and sued Kaleidescape in California state court for breach of contract on grounds that the Kaleidescape player violated the provisions in the license agreement that prohibit copying.

In April 2007, however, the trial court found that the rules purporting to prohibit copying were not actually part of the CSS license because they were contained in a separate document that was not incorporated by reference into the main license agreement. That finding rendered the question of whether Kaleidescape had actually violated the rules moot — you can’t be in breach of what’s not in the contract — so the court never decided the question.

DVD-CCA appealed the decision and in August, the California Court of Appeal overruled the lower court, declaring that the rules regarding copying were, in fact, properly part of the contract. Since that was the only question before it, however, the appeals court also reached no decision on whether Kaleidescape had actually violated the rules. Instead, the case was sent back for a new trial to determine whether in fact the rules prohibit copying and whether in fact Kaleidescape is not in compliance with those rules. Read More »

Digital Britain and the return of the Stationer's Company

Last week marked the 300th anniversary of the Statute of Anne, the first true modern copyright law in the West, which was passed by the British Parliament in 1710. It established a copyright term of 14 years and, for the first time, brought the author on stage as the party in whom the right was vested, rather than the bookseller/printer who had dominated the trade both legally and commercially since Gutenberg’s time. The statute also made the term renewable for another 14 years if the author were still alive at the expiration of the initial period.

Last week also occasioned the passage in England of the Digital Economy Bill, which, for the first time, made ISPs legally liable for the actions of their subscribers and imposed on them an affirmative obligation to protect copyrights to which they are not party. The timing of the passage was surely a coincidence. It’s unlikely many in Parliament were aware of date’s significance.  But it presented a striking juxtaposition nonetheless.

Prior to 1710, the book and printing trade in Britain (they were one in the same) was controlled by the Stationer’s Company of London, a royally chartered corporation with the power to enforce crown-sanctioned publishing monopolies (also called patents), regulate the import of books and see to it that no “seditious” or otherwise “objectionable” books or pamphlets were printed within the kingdom. Read More »

Blu-ray: Licensed to be killed

Back in 2008, explaining the lack of Blu-ray Disc drives on Apple’s newest line of notebooks, CEO Steve Jobs famously described the licensing process around the format as “a bag of hurt.” After this week’s announcement by the newly formed BD4C Licensing Group, he’s going to need some more bags.

Photo: ArsTechnica

The members of the new group, Toshiba, Warner Bros., Thomson and Mitsubishi, claim to own, collectively, a portfolio of patents “that are essential for BD Products.” Though none of the four are known to have contributed much original IP to the Blu-ray spec, they do own a number of patents essential to DVD products. Insofar as the Blu-ray spec requires that BD devices be backwardly compatible with the older format, device makers are stuck (or stuck up, depending on which end of the deal you’re on), to the tune of $4.50 per Blu-ray player, $7.00 per Blu-ray recorder and $4.00 per Blu-ray drive.

Blu-ray media manufacturers and replicators are also on the hook, the group claims, for 4 cents per disc and 8 cents per BD/DVD flipper disc. Read More »

Memo to Hollywood: You can't go backwards on consumer functionality

Back when the VCR first appeared, along with the video-rental market it spawned, it offered consumers something they had never had before in their home entertainment experience: do-it-yourself programmability. Renting a movie from the video store bought you not just two hours of entertainment. It bought you any two hours of entertainment–on your own schedule, continuous or not, experienced once or repeatedly–anywhere you had a VCR, which fairly quickly became anywhere you had a TV. In exchange for that flexibility, consumers were willing to suffer the inconvenience of a return trip to the video store.

The studios flattered themselves by insisting their content was “king,” and that their movies provided most of the value for renters. But the evidence says otherwise. For a decade and a half, consumers routinely put up with having to rent something other than their first choice of title because the basic value proposition of renting–any two hours of entertainment–was greater than the value of any particular title. Read More »

Walmart Does That VOD Vudu

Let’s stipulate that the $100 million price tag being bandied about for Walmart’s acquisition of Vudu is exaggerated, or includes various earn-out targets that likely will never be met, making the ultimate price something less than nine figures. Walmart hinted at as much in its press release, indicating the acquisition would “not be material” to its first fiscal quarter despite being scheduled to close within that period, suggesting there are triggers and contingencies in the deal that will play out over time, if at all.

Yet the fact that we’re even talking about a price that could reach into the $100 million ballpark suggests there’s something more going on here than meets the eye.

Or maybe not. Perhaps, as has been suggested, Vudu,  somehow, simply blew smoke up Walmart’s ass and convinced it to overpay for a marginal VOD provider. Or perhaps, as Streaming Media’s Dan Rayburn argues, Walmart simply doesn’t know what it’s doing in digital delivery and is setting itself up for another massive VOD fail.

But I think that’s too narrow a view of what Walmart is up to.

From Walmart’s perspective, Vudu has a number of valuable assets that make it more than simply a VOD provider with some nice content licensing deals. One of those is the HDX encoding format, which Vudu introduced back in 2008. With HDX, Vudu claims, it can deliver genuine 1080p video over the Internet in 4.5 Mbs of bandwidth. The format is optimized for LCD and plasma screens over 40-inches in size and incorporates a process Vudu calls TruFilm, which simulates the cinematic experience in a home theater by preserving film grain and other textural qualities of film. Read More »

Seeing Red over copyright

Having failed to put forth a competitive consumer proposition to counter Redbox’s dollar-a-night DVD rentals, the studios are on the verge of accomplishing what, from the point of view of their own economic interests, is the next best thing: they have brought the rental kiosk operator to heel and effectively forced it to accept a 28-day window after street date before it begins loading their DVD releases into its ever-expanding red maw.

On Tuesday, Redbox and Warner Bros. announced an agreement to settle the litigation the kiosk company had brought against the studio last year. As part of the deal, Redbox agreed to a 28-day “vending” window and to limit sales of used Warner discs. In return, Warner will allow Redbox to acquire its releases at a lower cost and promised to “cooperate” with Redbox on possible future digital delivery ventures.

While Tuesday’s settlement applies only to Warner, it’s widely expected that similar deals are in the works with Twentieth Century-Fox and NBC Universal, which are involved in similar litigation with the Redbox. Assuming that happens, new releases will essentially disappear from Redbox kiosks.

Make no mistake. Redbox rentals were hurting DVD sales and undercutting the studios’ other revenue streams. Its dollar-a-night rentals accounted for roughly one of every five dollars consumers spent on DVDs last year, and it returned a far smaller share of that dollar to the studios than Wal-Mart sends them when it sells a DVD. And from the studios’ perspective, the trend lines were getting worse. Something had to be done. Read More »

Miscalculating movie release windows

Speaking of windows, Disney has touched off quite the firestorm in Europe over its plan to release “Alice in Wonderland” on Blu-ray and DVD just 12 weeks after its March 5 worldwide theatrical debut instead of the usual 16 to17 weeks. Holland’s National Board of Cinema Owners is up in arms, and has organized a boycott among that country’s four largest theater chains, representing some 80-85% of screens. Three top chains in the U.K. are threatening to follow suit, vowing to keep Tim Burton’s 3D extravaganza off 95% of the 3D screens in the realm unless Disney backs down.

Good luck with that. I don’t see Disney backing down on this one. It obviously picked this fight with theater owners now because it knows it has the leverage to win. “Alice in Wonderland” will be one of the biggest-grossing theatrical releases of the year, with or without wide distribution in The Netherlands, and it has “Toy Story 3” in the wings, which will be even bigger. In crude terms, the theaters currently threatening boycotts need Disney’s movies more than Disney needs their screens, and both sides know it (U.S. theater operators have more leverage, of course, which is why Disney apparently has cut some sort of deal with NATO that would let it “experiment” with windows on one or two movies a year so long as it doesn’t make a habit of it).

The real question is: why is Disney so intent on getting “Alice in Wonderland” out on DVD and Blu-ray so soon.

In an interview with CNBC last week, Disney CEO Bob Iger said the early “Alice” release would allow the studio to “put the video out before the doldrums of the summer and to put it out when the movie is very fresh in consumers’ minds.” Read More »

Publishers throw the e-book business out the window

Book publishers have been crowing this week over having wrested control over e-book prices from Amazon. After a brief showdown with Macmillan Publishing, in which Amazon pulled all Macmillan hardcover and paperback titles from its physical-book store, the Kindle maker blinked and agreed to the publisher’s demand to raise the price of its e-books in the Kindle store from $9.99 each to $12.99-$14.99. Other leading publishers, led by Hachette Book Group and News Corp.’s HarperCollins unit, quickly said they would demand the same deal.

The publishers, of course, have long been concerned over Amazon’s strategy of pricing most new release e-books at $9.99 to spur sales of Kindle devices. Though publishers earn the same $12-$14 wholesale price from Kindle editions as they earn from hardcovers, they fretted that low prices on e-books would undercut sales of hardcovers, which typically sell for $20-$25 at retail. Eventually, they feared, the reduction in retail revenue would result in lower wholesale revenue as well. So long as Kindle owners made up the largest slice of the e-book market, however, the publishers had little choice but to go along. Read More »

Alarm bells come too late for Sony Pictures

The memo Sony Pictures co-chiefs Michael Lynton and Amy Pascal sent to employees Monday announcing massive layoffs, most of which will fall in the home entertainment and IT divisions, obviously wasn’t meant to be made public. But it’s fitting that it was leaked when it was, the same day that Bernstein Research analysts Michael Nathanson and Peter Choi published what amounted to an obituary for packaged media as a profit driver for Hollywood.

According to Bernstein:

  • For 2009-2012, we [previously] forecast overall U.S. home entertainment industry revenues to decline at a -2.1% CAGR. This underscores the mature nature of the industry, plus the importance of share gains for individual players. Over this time frame, aggregate operating profit declines of low single digits are also expected.
  • Now one year later, looking at the cold hard facts of 2009, retail spending on sell-through DVDs and Blu-Ray discs dropped by -18% while rental of these products actually increased by 4%. As a result, the sell-through of physical discs declined from 63% of the market to 57%.
  • This massive change in behavior continues to have negative implications for studio profitability as every home video executive would rather book the $16 of profit contribution per transaction from selling a disc vs. the $3.50 to $1.40 per disc profit contribution from rental.
  • [snip]
  • Our analysis also shows that the Blu-Ray format is having a more modest acceptance rate that traditional DVD. In 2009, three years after its introduction, Blu-Ray’s penetration of TV households stood at 4.4%, compared to 13.0% for DVDs in 2000. We also find that Blu-Ray [sic] has seen lower numbers of titles shipped per converted household relative to DVD. We don’t see Blu-Ray stemming the decline of physical sales. Read More »

Apple's media strategy: There's an app for that

It’s here. After nearly a year of carefully orchestrated speculation and hype, Apple has finally unveiled: the “iPad,” thus causing millions of women across the blogosphere, in unison, to go, “eewwww.”  (Are there no women in the marketing department at Apple?)

Among the less lunationally sensitive, the verdict has been more mixed, but the rough consensus seems to be that, at this point at least, the iPad is basically an iPod Touch on growth hormones: neat, but not quite overwhelmingly amazing, fantastical and way-cool the way the iPhone seemed when it launched.

Particularly disappointing to some, or at least puzzling, was the relative scarcity of media apps at launch for a device that was billed as revolutionizing the media industry, leading many to wonder what you’re supposed to do with the thing.

I have no doubt those apps will come, however, not only because Apple has already released an iPad SDK but because of what it offers media companies. Read More »

Another strike against three-strikes?

More from the be careful what you wish for files: As The Media Wonk noted in a previous post, there is more to France’s three-strikes law than just three-strikes. One less-discussed provision is the strict regulation of movie release windows by the government, taking a key strategic decision out of the hands of the studios. One early victim of that provision appears to be Twentieth Century-Fox, which has scheduled the release of Avatar on Blu-ray and DVD in France for June 1–several months earlier than ordinary business considerations would dictate but necessary to comply with the law.

That provision isn’t the only booby-trap in the law for content owners, however.

The Creation and Internet law, after all, which went into effect on Jan. 1, wasn’t passed only to crack down on digital piracy. It was also intended to promote the legal availability of “multimedia” content on digital platforms. As it turned out, content owners probably should have paid more attention to that end of the deal.

In the spirit of promoting availability, France’s Minister of Culture, Frédéric Mitterrand, ordered up a commission to study and make recommendations on ways to facilitate availability. To head the commission, Mitterrand named Patrick Zelnik, CEO of Naive Records, which happens to be the label for which French First Lady and pop chanteuse Carla Bruni-Sarkozy records (that’s just the way they do things in France).

The Mission Zelnik, as the commission came to be known, issued its recommendations in early January, and they included a number of surprises. Topping the list was a proposal to implement a collective rights licensing scheme for music on digital linear platforms (i.e. webcasts), in effect a compulsory license. The commission also recommended a “voluntary” collective licensing scheme for non-linear platforms (downloads and on-demand streaming), with the stipulation that if the industry can’t come up with a satisfactory “voluntary” scheme within a year the government should mandate one. Read More »