The back and forth between fitness company Peloton and a coalition of American music publishers continues. The latter have submitted another legal filing insisting that they have not behaved in an anti-competitive way by coming together to sue the Peloton business for copyright infringement.
More than a dozen independent publishers sued Peloton earlier this year accusing it of making use of their songs without licence. Peloton makes fitness machines that come with screens via which users can access workout videos. The lawsuit alleged that some of those videos contained unlicensed music controlled by the plaintiffs.
Peloton then countersued in April, mainly on competition law grounds. It alleged that it had previously had good relationships with most of the publishers involved in the legal dispute and was negotiating licensing deals with many of them. Those relationships only fell apart, it then claimed, because of interference by America’s National Music Publishers Association.
In proposing to buy WholeFoods for $14b, Amazon has surprisingly invited unwelcome serious antitrust investigation into, and public discussion about, Amazon’s core conflicted retail/MarketPlace business model and the many alleged predatory, discriminatory, and unfair standard Amazon business practices, that Amazon commits, not only in the grocery business segment, but in all other retail segments.
In stating “the parties expect to close the transaction in the second half of 2017,” that means Amazon expects no serious antitrust investigation of whether the transaction “substantially lessens competition,” and thus no “second request” from antitrust authorities requesting more information and questions to answer.
If a “second request” comes, which is likely, there is no way the companies can continue to “expect” the deal will be approved in 2017. That’s because such an investigative process effectively does not have any deadline for the reviewing authority, DOJ or the FTC, to either: approve, approved with conditions, or challenge the deal….
The combination of: the likely multiple alleged anticompetitive behaviors; the likely number of complaints and complainants; the online-offline complexity of investigating the complaints; the importance of this case as an online-offline antitrust merger precedent; the exceptional size, scope, reach, speed and non-transparency of Amazon’s online business; and the expected high-public profile of this transaction; all would auger for the reviewing authority to err on the side of caution and investigate the transaction fully.
Let me be clear here about what I am saying and not saying.
First, what’s obvious here is that the transaction will attract a lot of concern in private and publicly in multiple dimensions. That’s precisely because of the many serious implications this “Everything Store” proposed transaction will have for the future of competition in many markets, which in turn will delay Amazon’s transaction timetable.
…[M]ost of the antitrust concern will come with the exceptional market power that Amazon wields online, combined with the under-appreciated conflict in its business model where half of its retail revenues come directly from consumer-customers, and the other half of its retail revenues come from its MarketPlace offering where Amazon is the mall and gatekeeper for around 15 of its top 20 grocery competitor-customers, that have had to capitulate to Amazon’s market power and operate on Amazon Marketplace in order to reach all their offline customers online.
In layman’s terms, the problem Amazon’s retail intermediary model causes competitors is that it simultaneously is a direct retail competitor overall, at the same time it is the dominant online broker that has disintermediated its competitors from their customers when they are in the online world, and in that broker role, they are routinely criticized as not being an “honest broker” or as being a “non-neutral platform,” that routinely self-deals anti-competitively, because Amazon has market power to extract it with impunity, and no antitrust or regulatory accountability to speak of – to prevent it.
[T]his transaction review is the first genuine opportunity and powerful legal process for those alleging anti-competitive harm by Amazon to have antitrust authorities’ full ear in a confidential process where warranted.
The digital music era has seen no shortage of lawsuits over payment for songs — but the latest battle is poised to rock the industry.
Global Music Rights, a boutique performing rights organization, claims the country’s 10,000 radio stations are acting as a cartel to keep payments to songwriters artificially low, according to a complaint filed Tuesday in California federal court.
At the heart of the issue is how songwriters get paid when their music is played on a terrestrial radio station. Here’s how it works: Most rightsholders are represented by either ASCAP or BMI. Those organizations typically license music through “blanket licenses” covering their entire collections. Consent decrees issued by the Department of Justice decades ago in an effort to avoid antitrust issues require ASCAP and BMI to give a license to anyone who’s willing to pay for one.
Music industry heavyweight Irving Azoff launched GMR in 2013 in an effort to give elite songwriters another option and, hopefully, more money.
While GMR boasts songwriters behind hits by artists including John Lennon, Kenny Chesney and Drake, its roster of about 70 clients and 26,000 works pales in comparison to the combined 22 million compositions held by ASCAP and BMI — according to the complaint, that is by design.
“GMR has not accumulated and has no intention to amass the market power that other PROs have wielded,” writes attorney Daniel Petrocelli. “By keeping its catalog small and high-quality across the board, GMR is able to provide personalized customer service to its songwriters and keep the cost of those services low.”
GMR is now suing the Radio Music License Committee because it claims the group is ensuring there is no competition among radio stations in order to stifle the rates they pay to license songs.
“RMLC’s member stations are competitors,” writes Petrocelli. “Yet these ‘competitors’ created and actively participate in a ‘committee’ whose very purpose is to negotiate with PROs as a group and destroycompetition among them in the acquisition of performance license rates.”