Bob Schwartz

Category: Business

The Aereo Case and Media Reality

Aereo

Today the Supreme Court hears arguments in the case of ABC, et al. v. Aereo. Some characterize it as the most important media case in decades, one which could destroy broadcasting as we know it.

That is both overstated and understated. The big broadcasters who claim this is the apocalypse won’t go out of business; they will continue, though they might make a little less money or have to work a little harder for it. On the other hand, nothing less than the nature of modern reality is being considered, which is what makes the case so interesting and ultimately so hard to decide.

In a nutshell, this is what Aereo does:

Aereo sets up lots of tiny (thumbnail) antennas in your locality.

The antennas pick up the same over-the-air (OTR) TV signals you would if you had an antenna at your home (but you probably don’t).

You subscribe to Aereo for as little as $8 a month.

When you want to watch something from the stations that are on the air in your locality, Aereo assigns you an antenna, collects and records the signal from that antenna in its cloud, and streams that signal the way you want to the device you want, now or later.

The question is whether Aereo is retransmitting copyrighted content to subscribers, cleverly skirting retransmission fees that cable systems and others must pay, which would be stealing. Or whether Aereo is simply enabling you to do something you are legally entitled to do: receive OTR TV and then watch it, record it, or redistribute it to your own devices for your own personal use.

The Second Circuit Court of Appeal decided in favor of Aereo, with a vigorous dissent and with other Circuit Courts disagreeing, and now the Supreme Court will decide. If you read the briefs you can get an idea of the difficulty and the possible impacts.

One can say, as the big broadcasters do, that Aereo may be trying to fit through a loophole in the law, but that isn’t quite right. Aereo is taking advantage of a reality so profoundly new and so newly understood that every medium and every media business is just barely beginning to come to grips.

When you reduce things to information and can move that information around infinitely and frictionlessly and at relatively low cost, the processes and regulations meant to handle grosser things are of limited value.

First a book was a thing made of paper, then there was a copier which could copy pages on paper, then there was a scanner that could turn paper pages into digital images and, with OCR, characters, then there were entire books that never had anything to do with paper, ever, just pure arranged information. The same goes, with slightly different details, for every medium. The solution for the producers who wanted to control things (often with legitimate interests, such as creators being compensated), was to put the information in some kind of box, which to some looked like an information jail. It was and is this simple: once it gets out of the box, catching it and catching up with it is quite a chore. Because, as Stewart Brand famously said, information wants to be free.

If you had to characterize the actors in this case as good guys or bad guys, it does look like ossified old school versus new school, mega-corporations versus insurgents, or as one of the briefs says, David versus Goliath. Any way you put it though, and wherever your opinion lies, this is a hard case, and the maxim is that hard cases make bad law. In this case, bad law would mean that even if progressive principles are maintained, more looking forward than back, we are still in an astonishing mess when it comes to dealing with all this. One case at a time won’t do, and the expectation that Congress will seize the reins and lead us boldly into an enlightened future on digital intellectual property is, at least for the moment, not in the cards or the cloud.

Record Store Day 2014

Record Store Day 2014
That’s not a record store:

Spotify

This is a record store:

Amoeba Records

Record Store Day
Saturday, April 19, 2014

“I think it’s high time the mentors, big brothers, big sisters, parents, Guardians, and neighborhood ne’er do wells, start taking younger people That look up to them To a real record store and show them what an important part of life music really is. I trust no one who hasn’t time for music. What a shame to Leave a child, or worse, a generation orphaned from one of life’s great beauties. And to the record stores, artists, labels, dj’s, and journalists; we’re all in this together. Show respect for the tangible music that you’ve dedicated your careers and lives to, and help It from becoming nothing more than disposable digital data.”
– Jack White

Republican Jewish Coalition and the Sabbath

Republican Jewish Coalition Spring Leadership 2014

It’s Saturday, the Sabbath in Jewish communities. Why is this Sabbath different than all other Sabbaths?

Because on this Sabbath Sheldon Adelson’s Republican Jewish Coalition is continuing its three-day Spring Leadership Meeting, including a galaxy of political and policy stars looking for support, prestige, power, and money, including:

New Jersey Governor Chris Christie
Ohio Governor John Kasich
Wisconsin Governor Scott Walker
Vice President Dick Cheney
Israeli Ambassador Ron Dermer
Ambassador John Bolton

It’s true that the majority of American Jews don’t fully honor the Sabbath as a time for rest, reflection, and study. It’s also true that some number of those do try in small ways to live in the spirit of the Sabbath. Where Sheldon Adelson and the RJC sit on this spectrum of Sabbath observance and honor is between them and their God and their party.

One of the things that most non-Jews and many Jews don’t recognize is the complex significance of the Sabbath. The year is filled with special days, some regarded as very serious, very important and, in the case of the High Holidays, literally awesome. The Sabbath, though, stands apart, characterized as a beloved or royalty, as a bride or queen.

The great, deep and inspiring Jewish theologian Abraham Joshua Heschel wrote an incomparable work on the nature and meaning of this. The Sabbath presents a spiritual picture of what he calls sacred time. The book is considered by readers of all faiths and even no faith an uplifting view of how we are to live in the context of such a powerful reality.

It would be presumptuous to say whether the late Dr. Heschel, who among his many achievements marched with Martin Luther King in Selma almost fifty years ago, would attend the RJC Spring Leadership Meeting. In any case, most likely not the RJC on the Sabbath.

Although the RJC will be holding its political beauty pageant today, they still might have a moment to squeeze in some Heschel. This passage from the Epilogue of The Sabbath is out of context, and not so easy to appreciate on its own. It does have something to say about space, which can be owned and fought over, and time, sacred time, in which we are all joined and connected and sharing—no matter who you are, no matter how many casinos you own, no matter how big your PAC:

Time, then, is otherness, a mystery that hovers above all categories. It is as if time and the mind were a world apart. Yet, it is only within time that there is fellowship and togetherness of all beings.

Every one of us occupies a portion of space. He takes it up exclusively. The portion of space which my body occupies is taken up by myself in exclusion of anyone else. Yet, no one possesses time. There is no moment which I possess exclusively. This very moment belongs to all living men as it belongs to me. We share time, we own space. Through my ownership of space, I am a rival of all other beings; through my living in time, I am a contemporary of all other beings. We pass through time, we occupy space. We easily succumb to the illusion that the world of space is for our sake, for man’s sake. In regard to time, we are immune to such an illusion.

Bookstores in New York

 

Rizzoli Bookstore

Bookstores in New York
The gleaming rooftops at sundown
Oh, bookstores in New York
It lifts you up when you run down

Dreamers with empty hands
They sigh for exotic lands

It’s bookstores in New York
It’s good to live it again

Apologies to Vernon Duke, Autumn in New York, the greatest of all Manhattan songs

The New York Times ran a story this week, Literary City, Bookstore Desert: Surging Rents Force Booksellers From Manhattan .

If you’re interested, you can read the story yourself. If you’re paying any attention to New York, business, media, or culture, you already know the story. Bookstores under siege by the rise of Amazon and digital books. Manhattan rents skyrocketing. The number of people who care about or have actually had the bookstore experience falling. The number of people who associate the Manhattan experience with the bookstore experience falling faster.

Above is a picture of the Rizzoli bookstore on West 57th Street. It will be closing soon, as the building owner will be tearing down the building. It is not the only great bookstore, past or present, which has contributed to the specialness of Manhattan. It is, though, a good example of that. If you have not walked down 57th, and have not turned into Rizzoli, and have not walked up those stairs and past those shelves, you will have to imagine. The same goes for all the other big and small bookstores of Manhattan, some less grand on less grand streets, all of them filled with books. All of them places to get lost for a while, for a long while if the aisles are long and the shelves high, the way you get lost in a flirtation or a lifelong love.

This is not nostalgia. This is not romance, at least not the kind that constructs an unreal and unattainable dream. It is real, it is still there, for now, the bookstores, the books, the place and time to scan the titles, to pick up and pull out and leaf through and browse. A refuge from the Manhattan streets, or whatever streets you walk, a place and time to be yourself, to be anywhere, and mostly to fall in love. It’s still good to live it.

Ukraine Sanctions: Who Is Poking Which Bear

Bear
The most interesting message about this morning’s U.S. sanctions to protest Russian actions came from one of those sanctioned. The travel bans and freezing of U.S. assets are aimed at a handful of Putin advisers and others complicit in the Crimean takeover, but not at the highest level (including Putin) or at any businesspeople.

Russian Deputy Prime Minister Dmitry Rogozin, who is being sanctioned, tweeted this:

“Comrade Obama, and what will you do with those who have neither accounts nor property abroad? Or didn’t you think of that?”

On this day when a prominent Russian television journalist, with an atomic mushroom cloud as background, pointed out—correctly—that Russia is the only country that can reduce the U.S. to “radioactive ash,” the tweet from Comrade Rogozin is most telling.

The U.S., even more than our allies, is being poked. Taunted. “Is that the best you’ve got? You can do better than that!” The U.S. and Europe can of course do better (meaning: more severe) than that, from big business sanctions to military intervention, all of which threaten global instability.

This is the point in every fight when power has to be harnessed in the service of strategy. Russia wants nothing more than any excuse to throw away the rulebook they don’t believe in anyway. They aren’t so much bringing guns to a knife fight as brandishing guns to bring out the other guns and look like the victim. The aggressor victim.

Let’s hope or pray for our leaders to be strong, wise, unselfish, non-partisan, and honest (with us and with themselves), who can interpret the language of pokes, and can act appropriately.

Grammy Nominations Time Again

Neon Philharmonic
It’s Grammy nominations time again, in advance of January’s awards for the best in recorded music.

In some circles, the relevance of the Grammys is beyond question—as in there’s no question that they are irrelevant. In part that’s because of their being behind the times and missing the mark at various points. Of course awards are matters of disagreement and controversy, so it does come with the territory.

Still, there have been some infamously wild choices. Most celebrated, and the emblematic botched call, was Jethro Tull’s winning the 1988 Grammy for Hard Rock/Heavy Metal, over Metallica among others. (When asked about this today, as he always is, Jethro Tull leader Ian Anderson simply notes that he presumes the band got the award for being “nice guys’ who had never won.)

It takes literally an hour to read the entire list of nominations and probably days to listen to all the nominated music. It might be fair and nice to acknowledge what Grammy got right, but that’s no fun. They don’t need anybody’s encouragement and way to gos/att boys. Instead it is more hopefully corrective to list some offbeat nominations or lack thereof.

Lorde is nominated for Record of the Year, Song of the Year (songwriting) and Best Popo Solo Performance for Royals. But she is somehow not in the running for Best New Artist. That single and the album (Pure Heroine) have been monstrously popular across a variety of audiences. By way of bonus, this is genuinely original and interesting music, and she wrote and recorded it when she was only sixteen. So if she shouldn’t win Best New Artist—there are some worthy competitors—she kind of deserved a shot at it.

On the other chronological end we have the oldsters. For that weirdness, you have to check out the Grammy history for Led Zeppelin. They were nominated as Best New Artist in 1970, but lost to Crosby, Stills and Nash (the other nominees were Chicago, Neon Philharmonic and Oliver. Oliver.). Then nothing, no nominations, nada. Even though all the major Zep albums sit somewhere in the all-time 100, not to mention some of the even-more iconic tracks. (To keep from singing Stairway, I listened to Neon Philharmonic’s big hit Morning Girl and Oliver’s Jean. That’ll keep you from getting too crazy heavy.)

The reunited Led Zeppelin performed at a benefit concert in 2007, and the soundtrack of the film of that concert was released, and has resulted in two Grammy nominations: Best Rock Performance for Kashmir and Best Rock Album for Celebration Day, the concert soundtrack.

That’s right. A band that broke up in 1980 (33 years ago), a band that reunited for one performance in 2007 (six years ago) to record a song it first released in 1975 (38 years ago) is up for two Grammys.

Take that you naysayers. Who says Grammy isn’t still “with it”? If that is what the kids are saying these days.

Rethinking Wireless: Why AT&T CEO is Right and May Be Wrong

AT&T
AT&T is again rethinking wireless service. At an investor conference on Tuesday, AT&T CEO Randall Stephenson spoke about changes in how the company provides devices and services to its customers.

“When you’re growing the business initially, you have to do aggressive device subsidies to get people on the network. But as you approach 90 percent penetration, you move into maintenance mode. That means more device upgrades. And the model has to change. You can’t afford to subsidize devices like that.”

To unpack and analyze this, a little history, wireless and otherwise, is in order.

AT&T has been at or near the forefront of changing directions in the industry. It successfully moved large numbers of its customers away from unlimited data plans, with more than 70% now paying for a fixed amount that they can use. Without the simplicity of unlimited bundling of voice, data and text, AT&T has still tried to simplify by grouping those formats in shared plans.

But then there were the devices to deal with.

The mobile device industry is out of control, which is what you would expect in a free market for an exploding technology. Manufacturers can do more and more, more quickly, asking more or less for it, depending on the configuration and profitability demands. The upshot is that smartphones are on an annual improvement cycle (the typically-used 18-month cycle is just bandied about to make it seem a little less crazy). And those smartphones are genuinely expensive, befitting miraculous pocket-sized computers, which they are.

This is where wireless providers like AT&T came in and how it became such a mess.

As the gatekeepers of wireless service, providers find themselves playing two supposedly synergistic roles. When you get to the gate, they sell you service and devices to use the service. One of those roles is relatively simple and straightforward. The other—as a reseller of hardware—has become the problem.

Back in the day, before changes in telecomm capped by the breakup of “Ma Bell” in 1982, it was this easy for AT&T and its customers. You leased a phone from AT&T and you paid whatever regulatory bodies allowed for your service. The attempt to inject the free market into this process more or less worked to radically reform that. You could get your service elsewhere and you could get your phone elsewhere and ultimately anywhere. Pricing for service and devices dropped accordingly and precipitously. AT&T and its emancipated children did not have to be in the business of selling phones, though particularly in the business sector, they still did.

Then came wireless and all bets were off.

Networks and devices came in pairs: if you want AT&T service, these are the cell phones that work on its network. AT&T did not want to be in the device-selling business, but as Stephenson pointed out, that was how you get customers on the network, where you sell your actual moneymaker.

The evolution to smartphones and data seemed on its face an opportunity. Those devices would be hungry for exactly the sort of meal that AT&T cooked up. AT&T would make the devices relatively easy to own. It was Business 101: Give away the razors, sell the blades. Manufacturers devised really nifty devices, applications for those devices proliferated like rabbits, and all should have been right with the world for AT&T, even if it had to subsidize those devices.

But few could foresee the frenetic hyperspeed at which devices would develop. A smartphone barely two years old could become a technological and experiential antique—or so it was made to seem to consumers. AT&T and others always had appropriate upgrade paths, still predicated on the seductively-priced device model.

When the tenability of that model came into question, the industry looked over its shoulder to another industry that has long had to deal with expensive devices: automakers. While the idea of owning a telephone would have seemed strange to consumers in the 1960s, so would the idea of leasing a car. But when money became tight for car buyers, that is exactly what the auto industry turned to. And when wireless providers decided to no longer deeply subsidize $600 smartphones, they came up with the same solution. For the moment AT&T is still offering smartphones at a somewhat reduced price with a two-year contract, but not as reduced as it once was. AT&T would love to leave that model behind and it may well disappear entirely. Instead, you can pay full price for the device or bring your own (with a small monthly service discount if you do), or you can pay on installments. After 20 months, the device is yours, but as with a car lease, you will owe the entire residual amount if you end paying installments early.

Here are items that Stephenson did not account for or disclose, at least publicly at the conference.

By pulling away from its role in the device distribution chain, AT&T will not curb the device development madness or the consumer desire for the latest and greatest, which is always a few months around the corner. Stephenson’s taking a stand is completely bottom-line rational, but is likely to prompt a new dynamic, in which synergy diminishes, replaced by some still-to-be-determined forces.

In essence he has said: This is nuts and we are not playing this game anymore. But if he thinks that the other players—consumers and manufacturers—are about to adapt to AT&T’s direction, it may not be that easy.

Manufacturers have been granted extraordinary freedom by the subsidy-model, freedom which certainly contributed to the accelerated upgrade cycle. They have developed expensive devices that they knew would be discounted and therefore more accessible to consumers. But they are in the business of innovation, and they can’t and won’t just stop. Either they slow down innovation, or they make devices more affordable, or they expect people to shell out big bucks every couple of years. This may or not be what Stephenson had in mind to do: shift the onus, get out from the tight space, and put the manufacturers between the rock and the hard place.

Consumers also don’t want to be left behind. The only thing moving faster than smartphone development are expectations of user experience. A good part of that is software-based, not necessarily requiring a newer or better device. But some of the most appealing and desired features and functions are device-bound. In keeping with Stephenson’s comments, the free market conclusion is that if customers want something, they should be willing to pay for it, if they are able. People might want to drive a Lexus or BMW, but some are just going to have to settle for a reliable Chevy. But that doesn’t mean customers are going to be happy, no matter how rational it is, when they’ve been driving the best for less up to now.

That isn’t the biggest question or unspoken prospect.

Consumers may not want or need as much service as AT&T has prepared to provide and plans to sell. It is evident, from research and from the rise of non-phone tablets, that this is now a Wi-Fi device world. The expense of data drove consumers there, and once they discovered that most of the capability of their smartphones could be accessed via free or cheap, and nearly ubiquitous, Wi-Fi, data and even phone service became the sometimes necessary sidekick turned to if and only if there was no Wi-Fi available. Which other than travelling, is increasingly rare.

All of us—manufacturers, providers and consumers—are rethinking the possibilities.

Online Gambling and Real Life Guns: It’s About The Children

sheldon-adelson-615cs013012
A team of highly-paid ex-politico lobbyists are out there arguing against proposed bills in Congress to allow Internet gambling. Under one of these bills, a 12% tax would be shared between the federal and state governments, 4% and 8% respectively. That would be a lot of revenue in these hard times.

Gambling is an American and ancient tradition. Lotteries helped fund the American Revolution, which makes them practically sacred. In this case, the main opponents of digital gaming for money are the wealthy owners of real-world casinos and establishments, most visibly billionaire Sheldon Adelson, who helped bankroll Mitt Romney’s quest for the Presidency. No surprise there. The practice of online gaming, which already goes on with offshore sites, would expand dramatically, leaving bricks, mortar and showgirl spots with a severely reduced market.

Some of the arguments against the bills are, on their own terms, not entirely unpersuasive. Gambling does support hospitality and tourism, and if the already declining dollars drop further, there are going to be folks who lose their jobs in this challenged economy. It’s not clear that the entrepreneurs getting rich off this have the will and creativity to come up with substitute businesses that would replace those jobs. Gambling is also already a social problem, damaging lives and families, and what is bad gets worse with increased volume. The final big argument is, naturally, about “the children.” No matter what we try to do, the online environment is notoriously freewheeling, and there is no question that underage players would find a way to play, just as they get cigarettes and alcohol.

On the tourism question, cultural and social trends have always left some forms of entertainment and diversion behind while other new or more appealing ones prospered. Either you believe overall in the free market or not. People who say that government shouldn’t be picking winners and losers shouldn’t be telling the government to pick winners and losers.

Out of control gambling can be pernicious, no doubt about it. But the argument, one actually made, that the poorest in society would be unfairly burdened by the attraction of online gambling is under current realities absurd. First, because it is not clear that all the opponents of online gambling care so very much for the lower tiers of American society. Second, because government already endorses, promotes and profits from easy-access gambling that does weigh on the most vulnerable—the lotteries. With all the strains on government budgets, it is unimaginable what state some states would be in without those gaming dollars.

Then there is the ultimate trump card: the children. That score is easy to answer. On the scale of things kids shouldn’t be allowed to do, alcohol is number 2, tobacco is a close number 3, and then comes gambling. Number 1 is easy. Children should not have guns, should not live in an environment where guns are widely available and acceptable, and where guns are regularly used to shoot, injure and kill innocent people—including children.

So if you happen to see or hear any of those lobbyists shilling for Sheldon Adelson and his ilk, talking about how it is about “the children” and how we must protect them from the evils of playing online poker or placing a digital bet on an NFL game, ask them if guns aren’t a tad more dangerous, and ask them what they’ve done to seriously reduce the ubiquity of those guns and to eliminate the personal and social costs that those guns have inflicted on all of us.

There likely won’t be a good answer, at least not one that isn’t laced with equivocation, hypocrisy and protests of irrelevancy. It is relevant. Ask them to put the two side by side, the harm to children from online gambling and from guns, and tell them that the billionaires are free to make billions more on their casinos—just as soon as the guns get put away.

Lesson from The Voice: Caveat Inspector

The Voice
The Voice is now the dominant singing competition on television, having surpassed, probably permanently, American Idol. There is a lesson from The Voice that goes beyond just music, a lesson that goes to the heart of what has become a more media centric/entertainment centric society.

The reasons for the success of The Voice are pretty simple:

A substantial number of solidly talented and interesting contestants.

Panels of likeable and helpful celebrity coaches, with real musical expertise and real chemistry between them: Adam Levine, Cee-Lo Green, Christina Aguilera and Blake Shelton in the fall; Shakira, Usher with Levine and Shelton in the spring.

The show process begins with the uber-concept in the show’s name. The first round is a blind competition, where the panelists can hear but not see the contestants sing. It is, at least in part, all about “the voice.”

This week began the Knockout Rounds, where votes from the TV audience determine who will stay and who will be eliminated. The first of two nights on Monday was peculiar, anomalous for any singing competition. Of the ten singers who performed, not a single one was criticized, even for a tiny misstep—even though a few performances were very good, some were okay, and some were just not quality singing.

American Idol never quite figured out how to deal with judges’ criticism of contestants. Starting with the original panel, and continuing through the revolving door of judges who failed, there were more or less roles for the judges: the more brutal but somewhat constructive one (Simon Cowell), the kind, encouraging and heart-on-the-sleeve, maybe a little ditzy one (Paul Abdul) and whatever one (Randy Jackson).

There was an underlying issue in all that. There is little doubt that the producers of Idol shaded and spun the show so that certain contestants might rise a little higher than others. Whether this amounted to rigging results is unsubstantiated overstatement. But clearly, with all the elements at their command, producers could shine a different light on different singers, light that might affect voting. A judge’s praise or criticism could certainly be one of those elements.

In so many ways, for the better, The Voice is not American Idol. But the toolbox has some of the same tools: heartwarming or heartrending back stories, strategic song choices, etc. If the panelists/coaches criticism could affect the outcome, on Monday the decision seemed to be to have none at all.

And it was weird. At some point, even as the least trained audience ears could sense a musical problem, you could see coaches forcing smiles and faint praise. One big tell is when a panelist begins by telling a singer how good they look or how wonderful a person they are. Which is utterly ironic, since the show is based on the premise that voice matters above all.

If Monday’s absence of criticism was notable, it was even more apparent as soon as the Tuesday Knockout Round began. From the first singer on, many of the performances received what was in all cases deserved small critiques—never devastating, sometimes not as big as it could have been, but critique nonetheless. It was as if someone behind the scenes had noticed and said: our audience may like certain singers for their look, their attitude, their personality, but the audience isn’t deaf or stupid. We have a panel with four eminently talented musicians, and while we don’t want brutality, their credibility as judges of performances—their honesty—is on the line.

Which brings us to the greater lesson that should never be forgotten. From the beginning of advertiser-paid media, newspapers to now, all of those media have dual roles to play. They are whatever they essentially do—report news, entertain us, stage competitions, offer ways to publish short messages to the world, etc. But they are all also ways of delivering eyes, ears, hearts and minds to advertisers. There is nothing wrong with this. Nor is there anything wrong with media not being transparent about this obvious dual role and announcing all the things they do to increase the audience.

So enjoy. Get invested in your favorites (this season: Caroline Pennell, Tessanne Chin and Cole Vosberry, all of whom could be The Voice, all of whom deserve success). But remember that in commercial media, along with caveat emptor (buyer beware), it is caveat lector (reader beware), caveat inspector (viewer beware), and on this day of the Twitter IPO, caveat tweeter.

League of Denial: The NFL’s Concussion Crisis

league-of-denial-raster-br10-8
You may not think that you want to watch the new PBS Frontline documentary League of Denial: The NFL’s Concussion Crisis.

You may not want to spend almost two hours on a documentary, even a superb one. You may not like football, may not know anybody who plays football at any level, may not care about the business of sports. Then again, some or all of those may apply to you.

It doesn’t matter. You can watch League of Denial online. Please watch it.

One of the many lessons you will learn, if you didn’t already know, is that we pay a price for everything. Or at least somebody does. The price is sometimes advertised and obvious, but sometimes hard to find or even hidden. The point is not that something is good or bad, right or wrong, but that we can only make informed and enlightened decisions when everything is known. No more or less.