All Things Digital

HBO (TWX) has reportedly managed to do what NBC Universal (GE) failed so miserably at last year: convince Apple (AAPL) to adopt variable pricing at its iTunes digital media storefront.

Sources close to the network tell Portfolio.com that Apple will soon bring its programming to iTunes along with a separate and distinct pricing structure. No word yet on what that pricing structure is, but presumably it’s a lot more favorable than the one NBC Universal had.

An interesting move for Apple, and one that marks a shift in the company’s hard-line views of pricing. Perhaps the HBO arrangement is unique, perhaps not. But even if it is, it won’t be long before the entire content industry begins demanding similar deals.

Hollywood is finally embracing day-and-date film releases.

Yesterday, Time Warner (TWX) CEO Jeffrey Bewkes said that Warner Bros. plans to experiment with VOD releases day-and-date with DVD later this year. And now this morning, Apple (AAPL) announced that a number of major and independent movie studios have agreed to make their films available on iTunes day-and-date with DVD–$9.99 for library title purchases and $14.99 for new release purchases. Among the studios participating in the deal: 20th Century Fox (NWS), Walt Disney Studios (DIS), Warner Bros., Paramount Pictures (VIA), Universal Studios Home Entertainment (GE), Sony Pictures Entertainment (SNE), Lionsgate (LGF), Image Entertainment (DISK) and First Look Studios (FRST.PK).

An impressive lineup and one that clearly heralds a shift in the movie industry’s view of digital distribution. A shift in iTunes movie purchases as well–upward. The removal of Hollywood’s typical 30-day lead time on DVD releases will no doubt boost new-release sales on iTunes, assuming customers don’t mind paying $14.99 for films that lack the extra features and picture quality of their DVD counterparts. It will boost movie studio revenues as well. With no manufacturing and reproduction costs to speak of, margins from day-and-date download releases are presumably quite high.

So much for that hard-fought DVD format war …

Sony BMG (SNE) has signed on to Nokia’s (NOK) new “Comes With Music” program and really, who better than the pioneer of the rootkit digital-rights management scheme to endorse Nokia’s DRM-hobbled prebundled music initiative?

This morning, Sony BMG became the second record label to jump on board the Finnish phone giant’s Comes With Music offering, which–when it launches in the second half of 2008, will package mobile phones with a year of unlimited access to music. There are, however, certain caveats to that value proposition, as I pointed out last December:

Though Comes With Music does indeed permit owners of certain Nokia cellphones to download as many songs as humanly possible in one year (with no per-song data charges), transfer them to a PC and keep them at the end of that time, they must pay a per-song usage fee to burn them to CD. What’s more, the songs are wrapped in Microsoft’s (MSFT) ironically named ‘Plays for Sure’ digital-rights management scheme, which prevents them from being played on the iPod, Zune, etc. Finally, another 12 months access to the music catalog requires the purchase of a brand new phone.”

Clearly, Sony, like Universal (VIV.PA) before it, doesn’t see these issues as off-putting to consumers. “When you give consumers the key to the candy store without any limitations, there’s a lot more opportunity for discovering music that you might not have found before,” said Thomas Hesse, president of global digital business and U.S. sales for Sony BMG Music Entertainment. “We think this will energize the discovery of music.”

It might energize Sony BMG’s bottom line a bit as well. When Universal first signed up for Comes with Music, sources close to the company said that Nokia would pay the label up to $35 for every phone that offers access to its library. Nokia subsequently denied it was paying that amount, but it’s definitely paying something–to Universal, Sony and whatever other labels it manages to line up for the service.

Comcast is apparently too busy drafting its “P2P Bill of Rights and Responsibilities” to bother attending the daylong hearing into its dubious “network management” practices. An odd decision for a company so intent on “clarifying” the practices ISPs should use to manage P2P applications running on their networks. But according to a company spokesperson, Comcast (CMCSA) “felt the issues specific to us were well covered at the first hearing, and the focus of this event should be broader than any individual company’s issues.”

Broader issues? Like reasonable network-management practices? The responsibility to deliver traffic fairly? Service disclosures? The sort of issues that might figure prominently in a “P2P Bill of Rights?”

Guess not.

Anyway, Comcast has already scrapped its policy of deliberately slowing some traffic flowing over BitTorrent and other P2P networks, so there’s really no need for Federal Communications Commission Chairman Kevin Martin to bust its chops anymore. As Mitch Bowling, Comcast’s senior vice president and general manger of its Internet service, told the New York Times, Comcast’s new policy is to slow traffic based on usage pattern, not application. “[Our new technique] will be based purely on individual consumption by consumers,” Bowling said. “Anything in addition to that is outside the scope of what our network management goal is.”

So the company plans to throttle traffic to the customers that use the most bandwidth. Hmmm. I wonder who those might be? The folks who use the Internet for email and Web browsing or those who use it for downloading digital media?

America Online acquired Time Warner for roughly $106 billion in stock and debt back in 2001. “I don’t think this is too much to say this really is a historic merger; a time when we’ve transformed the landscape of media and the Internet,” former AOL chairman and CEO Steve Case said at the time. “Time Warner will offer an incomparable portfolio of global brands that encompass the full spectrum of media and content.”

And it did. Problem was, AOL didn’t turn out to be one of them. And so today, Time Warner, which has been struggling for years now to turn AOL into the “digital media powerhouse” it was supposed to be, said it is splitting it in half.

“We need to complete AOL’s business-model transition and are working on separating AOL’s access and audiences business so we can run them independently,” said Time Warner CEO Jeff Bewkes. “This should significantly increase AOL’s strategic options for each of these main business sectors.”

“We have a lot to be excited about and there’s more good news to come.” This from Yahoo CEO Jerry Yang who, in his latest all-hands memo, seems to have forgotten not only about the “head winds” his company faces this year, but also about the 1,000 employees whose jobs he plans to “realign.” The full text of the memo (corrected for capitalization and punctuation) follows:

Subject: Building on our strengths

Yahoos -

First off, I want to thank you for the great job you’re doing staying focused on executing our priorities. There’s obviously been a lot of talk about Yahoo in recent days, and we won’t let it distract us from pursuing our transformation strategy.

Roy and I have communicated about the thorough review process our board is going through right now. The board is focused on maximizing the value of Yahoo’s tremendous assets for our shareholders. And it is going to take the time it needs to do it right.

As we’ve said, no decisions have been made about Microsoft’s proposal. Our board is thoughtfully evaluating a wide range of potential strategic alternatives in what is a complex and evolving landscape. And we’ve hired top advisers to assist through the process.

What’s become clear in the past few days is how much people care about this company. We’ve seen a strong show of support from our users, advertisers and publishers, reminding us how much they love our products and services. And I’ve heard from many of you–and from other friends and colleagues from around Silicon Valley and across the globe–that we need to do what’s best for Yahoo and our shareholders. I promise you that the board is going to do that.

The Microsoft interest highlights the tremendous strength of the Yahoo brand and assets: our half billion users around the world, our leading products and services, our open ad network, our technology and, most of all, our amazingly talented people.

We have a lot to be excited about, and there’s more good news to come. Yesterday we announced a digital music partnership with rhapsody and our acquisition of FoxyTunes, maker of the popular music toolbar plugin. Today we launched Zimbra 5.0, a next-generation email and collaboration suite that’s a great milestone in our open platform and starting-point strategies. And stay tuned for exciting announcements next week at the Mobile World Congress.

As we look to build on the progress we’ve been making, I want to make sure you all realize how essential you are to Yahoo’s success. As this process moves forward, we’re going to keep you informed. Your hard work and strong commitment are more important now than ever before.

Jerry

The Recording Industry Association of America demands damages of $150,000 per song for file-sharing infringements, yet it pays the artists who create those songs pennies for their work. And now it wants to pay them even less.

The RIAA and its online counterpart, the Digital Media Association, have petitioned the Copyright Royalty Board to slash the so-called mechanical royalties paid to musicians and music publishers for digital downloads, subscription music services and ringtones. Seems the RIAA and DiMA feel they’ve suffered unfairly during the transition to digital distribution and they’d like artists to share in their misery.

The National Music Publishers’ Association, noting the favorable economies of digital distribution, asks for a royalty of 15 cents per track for permanent digital downloads. The RIAA argues that a royalty of approximately 5 cents to 5.5 cents per track is more reasonable. The DiMA–which represents Apple, Amazon and RealNetworks, among others–suggests cutting that royalty further still.

Find that astonishing? Just wait; it gets worse. For streaming music services, the NMPA proposes a rate of the greater of 12.5% of revenue, 27.5% of content costs, or a micro-penny calculation based on usage. The RIAA finds 0.58% of revenue more reasonable. And the DiMA says there really shouldn’t be any royalty at all. “Fundamentally, this fragile marketplace is showing signs of promise, but it cannot be saddled with additional, excessive costs,” the DiMA argues. “The board should be careful not to impose a royalty that kills the proverbial goose and deprives songwriters and publishers of their golden egg.”

An interesting choice of metaphor and one in which the DiMA and RIAA might easily figure as the giant at the top of the beanstalk:

Fee! Fie! Foe! Fum!??
I smell the blood of a musician.
Be he ‘live, or be he dead,
I’ll grind his bones to make my bread.”

Grind his bones to make my bread, indeed.

Said Rick Carnes, president of the Songwriters Guild of America: “Our opponents have to recognize that this rate-setting is not a matter of gamesmanship for songwriters, but rather one of survival. As I stated in my testimony, in response to a question from those seeking to cut the mechanical royalty rate in half and to denigrate the importance and contribution of professional songwriters to the music industry, ‘Yes, songs are plentiful, just as rocks are plentiful. But if you want diamonds, you are going to have to pay the miners a living wage.’ ”

Digital music sales are soaring, but that hasn’t stopped the recording industry from continuing to spin its long-running woe-is-me tale of piracy and declining revenues.

According to the International Federation of the Phonographic Industry’s 2008 Digital Music Report (PDF), global digital music sales rose to $2.9 billion in 2007, up from $2.1 billion in 2006.

Now that 40% increase isn’t nearly the doubling of digital sales we saw in 2006, but it’s not insubstantial, either. Especially when one considers that digital sales grew to account for 15% of the world’s music market, up from 10% in 2006. That means that almost a sixth of music sales already come through digital channels. This despite five or so years of the recording industry’s Keystone Kops approach to the digital music revolution.

All things considered, things aren’t going too poorly–even if the growth of digital music sales hasn’t yet offset declines in physical music. That being the case, it’s difficult not to look askance at the IFPI’s calls for governments and Internet service providers to take a hard line against file-sharing.

“Copyright theft has been allowed to run rampant on [ISP] networks under the guise of technological advancement,” IFPI Chairman and CEO John Kennedy wrote in the report. “Some estimates say no less than 80% of all Internet traffic comprises copyright-infringing files on peer-to-peer networks.”–80%? Does the IFPI suffer from the same math disability as the MPAA?–”ISPs have largely stood by, allowing a massive devaluation of copyrighted music. This in turn–and despite all the positives about our digital growth–has prompted a crisis in recorded music that has wide implications for the whole digital marketplace and all those businesses to whom music is an important ingredient. … Today, however, a sea-change is happening. The whole music sector, governments and even some ISPs themselves, are beginning to accept that the carriers of digital content must play a responsible role in curbing the systemic piracy that is threatening the future of all digital commerce. After years of discussing and debating, I am convinced it is no longer a question of whether the ISPs act–the question is when and how.”

And the answer? Five bucks and a copy of the latest Britney Spears album says it’s network-level filtering.