Public Knowledge Testifies Against the Universal/EMI Merger
Public Knowledge Testifies Against the Universal/EMI Merger
Public Knowledge Testifies Against the Universal/EMI Merger

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    Yesterday I watched PK President and CEO Gigi Sohn, among
    others, testify in front of the Senate Judiciary Committee Subcommittee on
    Antitrust, Competition Policy and Consumer Rights in a hearing
    on “The Universal Music Group/EMI Merger and the Future of Online Music.” Seeing
    the hearing in person was itself an achievement, as the line was already down
    the hall and around the corner an hour and a half before the scheduled start.
    Obviously, this is a subject people are interested in. PK, in particular, is
    concerned that allowing the largest record company to absorb the fourth largest
    would create a “super-major”
    that would have too much control over methods of distribution and
    would harm consumer access to music.

    The witnesses testifying in favor of the merger, Lucian
    Grainge, CEO of Universal; Roger C. Faxon, CEO of EMI; and Irving L. Azoff , CEO
    of Live Nation Entertainment, all focused on arguing that the current music
    industry environment is highly competitive and that the Internet creates many opportunities
    for emerging artists.

    The witnesses opposing the merger, Edgar Bronfman, Jr., of
    Warner Music, Martin Mills of Beggars Group, and Gigi Sohn, pointed out that
    this argument is a deflection from the actual matter at issue, which is that a
    merger between Universal and EMI would result in a music industry superpower
    that would control 42% of the market and 51% of last year’s Billboard Top 100,
    and that such a superpower would have the ability to act as a gatekeeper for
    any new distribution service hoping to enter the market. Mills, additionally,
    disputed the idea that the Internet and digital content create a highly
    competitive market. He noted that although independent labels control 30% of
    the market, the major labels still control the distribution rights for two
    thirds of that 30%.

    It wasn’t until Senator Franken asked Grainge directly that
    any of the proponents of the merger actually addressed the potential for such a
    significant market share to create an incentive to demand more in negotiations.
    Grainge argued that the record labels would always want to engage with
    different technologies because it is in their interest to create opportunities
    for people to purchase their music. He brought this argument up several more
    times throughout the hearing: if Universal doesn’t engage with every potential
    outlet, digital or otherwise, its artists will suffer and leave, its sales will
    drop, and it will end up going out of business.

    However, as Gigi then pointed out, Universal hasn’t actually
    been doing that. Universal has a long history of not only neglecting
    alternative services but actively fighting them. Universal has sued online
    services Deezer, Vevo and Grooveshark; its licensing demands for the Zune were
    excessive, insisting on a royalty for every player sold; and it was the third
    of the four companies to sign with Spotify and Google Music. Its actions
    clearly belie any claim that it would happily engage with digital distribution
    services without pressures from the other labels. When directly confronted with
    these examples, Grainge’s only response was to repeat his contention that
    Universal would have to be crazy not to license its music on as many platforms
    as possible. Apparently, Grainge believes his company has been making terrible
    business decisions for years. And although proponents of the merger were quick
    to note that digital technology makes artists less dependent on labels as an
    argument that the merger would not make the resulting company too powerful,
    they were unwilling to admit that this also gives them an incentive not to
    adopt the technology.

    The other major theme that emerged was a comparison to the
    failed AT&T/T-Mobile merger. The parallels are obvious – two of the four
    major competitors in an already-under-competitive industry combining to form
    three. Mr. Grainge objected to this comparison, however, repeatedly claiming
    that unlike AT&T, Universal does not have a direct paying relationship with
    the consumer. Even if one accepts that Universal never distributes its own
    products to consumers (although it does sell its services directly to
    musicians), this ignores the important fact that antitrust regulation is about
    market control, and just like AT&T/T-Mobile, an approved merger would
    result in a company with a dramatically oversized share of the market,
    resulting in reduced competition and consumer choice.

    Those were only the most common of the themes that emerged during the
    two-hour hearing. A few other highlights, though: UMG’s suggestion that
    antitrust law doesn’t actually apply to the music industry, the argument over
    whether record sales have suffered because of piracy or because of industry
    price-fixing, the way the conversation always came back to how the merger would
    affect Adele. I very much recommend that anyone interested in the topic watch
    the video
    or read the transcript when it becomes available online.