Category: Uncategorized

Content is King; People will Pay Anything for Their Entertainment

I tell my classes in media topics that “people will pay anything for their entertainment.”  Today we get yet one more proof of that.  Apple, a company famous for mostly hardware and a good place to buy music, is going to invest $1 Billion in new content in 2018.  Wow! The entertainment business is big, but that is still a lot of money.  For example, ALL of Broadway grossed approximately $1.5 Billion last year.  this is a huge number and shows the continuing shift from “appointment media” such as networks toward “me media” or on-demand consumption.  Here a company that is good at making harware or selling songs is venturing into content much as other recent neophytes including the “bookseller” Amazon and the “video rental store,” Netflix.

Yet these non-traditional media venues are having terrific success creating media and getting the public to consume and rave about their shows; just check the number of Emmy nominations they are receiving.  Why?  Well from their side, the intellectual property is a gold mine with enduring value.  You can only sell a computer once, but you can play a show over and over again for many years.  What is not to like about that revenue model?  And on the quality side, media has always been a “gig economy” where people come together for a project then disband and go onto their next project.  So there are few institutional barriers to working on a gig for Apple, Amazon, or Netflix, and it is always another employment opportunity in a business famous for not having enough.  The tide has turned, the number of opportunities is rising, and there is no downside to working for a non-traditional media company.



More Attempts to Regulate Google

It has been a while since I posted last. And my last writing was some thoughts about whether there would be attempts to regulate Google in a way that is more traditional for media. I was struck today by a column today reporting that the EU was asked to regulate Google like other communication utilities. “Rivals: Google should be regulated like telcos and electricity companies”

This is a short distance from the rest of media regulation. “Electricity” regulation actually provided the public interest standard that was incorporated into communication law early in the last century. And after the Telecom Act of 1996, telcos have been acknowledged to have some first amendment rights, depending on their activities. What about Google? It is certainly a first amendment speaker. Regulating Google can stifle one of the greatest innovation engines in recent memory.

Will the FCC/FTC regulate Google?

I recently read an article that prices are rising on click-through advertising.  I also use an article in class on a small business who ran afoul of the Google advertising rules and Google took his business off of their search advertising..  The small business owner reported that losing Google as an ad source almost killed his business.  These two unrelated and disparate data points brings to mind the world of media regulation, a world that Google is for the most part does not involve Google.  But could it?

The FCC regulates most media.  Many of the rules are obsolete, but each was crafted to solve a marketplace problem.  These rules include mandatory access for certain speech and prohibitions against other speech.  The FCC would regulate the marketplace to correct perceived imbalances.  And the marketplace was three very powerful networks (ABC, CBS, NBC), a public outlet (PBS), an emerging network (FOX) and numerous independent stations (think WGN/WPIX/KWGN).  So even with multiple outlets, the feds deemed the marketplace in need of regulation.

Google is THE dominant player in search and in search advertising.  It has enormous power to help businesses. I now wonder if their search power and their pricing power is so absolute that the feds (either the FCC or the FTC) might decide to try to regulate them.  Yes, there are plenty of obstacles to such regulation including the First Amendment. 

Mobile Media Law

Media law now has legs and wheels. Mobile devices create new challenges for media law. Can the content be re-purposed to the new media platform? The answer, by the way might be “no,” because it depends upon the rights that the distributor has. See NY Times v. Tasini for a case where the content distributor (NYT) should have gotten more rights for new technology distribution. What about services that pick up signals transmitted over-the-air and make them available on the Internet? What about making your own ringtones? Are those copyright infringement? How about books? Books used to be print items, but now e-books are taking over. All of these create new challenges for media lawyers and media entrepreneurs.

Does Wikileaks remind us of the Pentagon Papers?

Should governments keep information secret? Yes, as with any relationship and in any situation where one knows others do not like them, some information must be secret. Not to be too brief, but relationships with other countries can be damaged, and some people might even be injured. The world is a big and dangerous place and there are all types of people with lots of different motivations.

So what about Wikileaks? Is it a service of transparency and honesty or something insidious that must be stopped? We in the US have a tradition of free speech. And further, this is not the first time such a thing has happened to us. There are many court cases on government leaks. From Veronica Plame to the Pentagon Papers to the numerous cases during the first two World Wars, release of government information has been problematic to the government and a subject of public debate. But the US is a strong country, and we learned lessons over the years. One lesson we learned is that much like a parent must take responsibility for their children, the government must take responsibility for the safety of its data. We have also learned that individuals have always been held accountable for the leaks. And that is as it should be. If the government loses its data, it is responsible. The person who commits the theft, is of course also responsible.

But so far, the US has not had a strong tradition of holding the publishing news organizations responsible for the dissemination of the data. The New York Times published the Pentagon Papers with the way being cleared by the US Supreme Court (New York Times v. US 403 US 713 (1971). And Wikileaks sought out the major news organizations such as the New York Times, the Guardian in the UK, etc. to assist with its publication of leaked material.

I bring up this thread as I think about privacy, about the government role in keeping itself and its population (including me) safe, and about the traditions of free speech. Should the government keep its data safe? Certainly. What happens when it loses its data? Who is held responsible? Is it OK to use a “prior restraint” to stop the publication (so far the USSC says “no”)? Does the leaked information ever enter a “public domain?” What is the balance between the journalistic concept of the public interest and national security? These issues have been debated for decades. Time to debate them again.

The NBC-Comcast Merger

Comcast is buying 51% of NBC from General Electric.  I worked for the GE/NBC in New York and I can say, along with every public observer I have seen write on the subject, that NBC was a difficult cultural fit for GE.  It is not that GE did not try to assimuate NBC and it is not like NBC was not valuable to GE.  In fact, NBC oftn delivered more of GE’s profits that its share.  In a recent quarter, for example, NBC was 11% of GE’s operations yet deliverd 12% of their profits.  Even so, GE’s primary culture is one of manufacturing, not entertainment.  So NBC seemed like a bit of an awkward fit.  so Comcast buying NBC is probably a good thing.  GE obviously thinks so since they are setting up a deal with very favorable terms for Comcast.

The next steps include a review by the FCC.  Perhaps the FCC might even set conditions on he merger.  And with the size of this merger, it is not unlikely that the del will also be reviewed by the Justice Department and maybe even the FTC.

Are your text messages private at work?

WASHINGTON (Reuters) – The U.S. Supreme Court said on Monday it would decide whether privacy rights covered a worker’s personal text message on employer-owned equipment, hearing a case about a police officer who sent sexually explicit messages from his department-issued pager.

Medialawprofessor comment: This could be a landmark case. While it involves privacy, it also crosses the line into employment law and certainly can help define the developing cyberlaw. The case is: 08-1332 ONTARIO, CA, ET AL. V. QUON, JEFF, ET AL. Cert granted by USSC on 12/14/09.  The usual test for privacy is whether a person has an “expectation” of privacy.  If you are standing on a public street corner, you do not have an expectation of privacy.  If you are inside of your own house, however, you do have an expectation of privacy.  When using employer equipment, ie cellphones, pagers, email, etc. the past cases have usually come down clearly that the employee does not have an expectation of privacy as to his or her employer looking at their emails, etc. that are hosted on company property (email servers).  Could this grant of cert be a signal that the USSC is going to change the majority rule?