bundling
Spotify is demanding that a federal judge toss out a lawsuit filed by the Mechanical Licensing Collective over royalty rates, calling the case “nonsensical” and “wasteful.”
The MLC sued earlier this year, claiming Spotify had “unilaterally and unlawfully” chosen to cut its music royalty payments nearly in half through bookmaking trickery – namely, by claiming that the addition of audiobooks to the service entitled the company to pay a lower “bundled” rate.
But in a motion to dismiss filed in court Tuesday, Spotify calls those claims “meritless and wasteful” – arguing that making hundreds of thousands of audiobooks available to subscribers was not a “token” gesture aimed at reducing music royalties.
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“MLC’s position is nonsensical and factually unsupportable,” Spotify’s lawyers write. “And it profoundly devalues the contributions of the tens of thousands of book authors whose works are available with a Spotify Premium subscription—from literary luminaries, to mainstays on best sellers lists, to up-and-coming writers who are finding their audience.”
The MLC, which collects streaming royalties for songwriters and publishers, filed its lawsuit in late May — a week after Billboard estimated that Spotify’s move would result in the company paying roughly $150 million less over the next year. In its complaint, the MLC claimed Spotify was “erroneously recharacterizing” the nature of its streaming services to secure the lower rate.
“The financial consequences of Spotify’s failure to meet its statutory obligations are enormous for songwriters and music publishers,” the group’s attorneys wrote at the time. “If unchecked, the impact on songwriters and music publishers of Spotify’s unlawful underreporting could run into the hundreds of millions of dollars.”
At issue in the lawsuit is Spotify’s recent addition of audiobooks to its premium subscription service. The streamer believes that because of the new offering, it’s now entitled to pay a discounted “bundled” royalty rate under the federal legal settlement that governs how much streamers pay rightsholders.
In Tuesday’s motion, Spotify’s lawyers strongly defend that interpretation. They argue that the market for audiobooks has attracted “billions in consumer dollars” and that adding books was the kind of valuable new perk that had been intended to be covered by the lower bundled rate.
“At the heart of this dispute is an easily answered question: Is audiobook streaming distinct from music streaming, offering greater than token value?” the company’s lawyers write. “The answer is indisputably yes, and there is no need for federal court litigation to confirm it.”
The rule at issue says that streamers can use the bundled rate if they offer “one or more other products or services having more than token value.” Claiming that more than 200,000 audiobooks does not qualify under that rule is “baffling,” Spotify’s lawyers write.
“The creative output of these authors is not merely of ‘token value’,” Tuesday’s filing says. “Acceptance of that unassailable, commonsense proposition should end this meritless and wasteful litigation.”
MLC’s attorneys will file a formal response to the motion in court in the coming months. In a statement to Billboard on Thursday, the group said: “The MLC’s general practice is not to comment publicly on pending litigations. That said, we would reiterate that we take the enforcement obligations assigned to us by Congress extremely seriously and would refer you to the complaint we filed in this matter for more details regarding our position on this matter.”
Warner Music Group’s stock was up around 3% Wednesday (Aug. 7) as investors optimistically received its fiscal third-quarter earnings report, which showed that streaming revenue continues to grow for the third-largest major music company.
On a call discussing the company’s earnings, Warner Music Group (WMG) CEO Robert Kyncl answered questions and shared his perspective on Spotify’s bundling controversy; discussed what WMG is doing to get more mileage out of its catalog; and shared a broad update on the company’s previously-announced $200 million cost savings/reinvestment plan — while remaining mum on the more recent executive restructure that’s been reverberating through the music industry since last week.
See below for three major takeaways from the call.
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Bundling is not inherently bad
Overall streaming revenue was up 5% for Warner this quarter, with recorded music streaming revenue up 8.7% — reflecting growth in subscription revenue of 7%. While that was welcome news to investors, the subject of Spotify’s contentious decision to bundle music and audiobooks — allowing them to qualify for the lower mechanical royalty rate reserved for bundles under the Copyright Royalty Board’s (CRB) Phonorecords IV agreement — did not go unmentioned. But in his opening remarks and later, during a Q&A period with analysts, Kyncl said the company derives its streaming earnings from a diversity of partners and appeared to tamp down talk of the controversy that erupted over the bundling policy.
“I know that investor attention has recently been focused on the dynamics between labels and DSPs, with some speculating that we’re adversaries playing a zero-sum game. That’s simply not the case,” Kyncl said. “We’re actively engaged with our partners around ways to drive growth for all of us. Streaming dynamics remain healthy … with plenty of headroom for subscriber growth in both established and emerging markets … across multiple partners. Also, price optimization and improvements in the royalty models will provide ongoing opportunities for additional growth.”
Kyncl went on to note that bundling, which could result in lower payments to songwriters, has been used in other industries, like TV, for the purpose of market expansion. “The job of wholesalers like the music companies is to ensure that the sanctity of our pricing are in line with each other. You can expect us to pursue that strategy,” Kyncl said. “As it relates to CRB, I don’t see it as something that will persist in the long term.”
Radio silence on executive restructuring
WMG executives did not directly discuss the internal restructuring plans made public last week, which led longtime co-leader of Atlantic Records and Atlantic Music Group chairman/CEO Julie Greenwald to announce she was stepping down on Tuesday (Aug. 6). During his opening remarks, Kyncl did highlight the “commercially and creatively … successful” partnership between WMG and 10K Projects — whose CEO/founder Elliot Grainge has been picked to succeed Greenwald — by noting English-Cypriot singer-songwriter Artemas’ single “I Like The Way You Kiss Me,” which reached No. 1 on Billboard‘s Global Excl. U.S. chart in April.
However, Kyncl did share details about a restructuring plan he mentioned on WMG’s last earnings call, which included selling the entertainment websites Uproxx and HipHopDX — with the overall goal to increase investment in music, technology and new skill sets and deliver $200 million in savings by the end of fiscal 2025.
“The majority of changes have already been implemented,” Kyncl said. “We are laying a strong foundation to accelerate our progress and yield greater value over time. We made improvements to our royalty systems and the tools used to identify unclaimed revenue, we overhauled our global supply chain, unlocking our ability to scale our third-party distribution business, and we’ve transformed our proprietary tools that identify fan trends while building new ways to engage with super fans.”
Catalog optimization is a major priority
One area where Kyncl is investing in technology is through a project he says is aimed at increasing the “performance of catalog…across all of our DSPs.”
Speaking of recent spikes in streaming for artists in Warner’s “deep” catalog — like Joni Mitchell and Tracy Chapman — as well as “shallow” catalog like Ed Sheeran, Kyncl said generating continued digital success stories for those acts is a top priority.
“We have a project on this across our technology and business teams to move down the entire catalog and make sure it’s properly optimized for streaming and on every large DSP,” he said on the call. “All of this augments our marketing campaigns against catalog which we have done in the past and continue to do and we’re applying more and more frontline focus on catalog.”
The National Music Publishers’ Association’s (NMPA) war with Spotify continued at its annual meeting held Wednesday (June 12) at Lincoln Center’s Alice Tully Hall.
In an address to the publishing executives in attendance, NMPA CEO/president David Israelite announced that the organization has filed an official complaint with the Federal Trade Commission (FTC) and sent letters to the attorneys general for nine states as well as consumer trade groups to try to stop Spotify from reclassifying its premium tiers as “bundles” — a classification that allows the streamer to pay a lower mechanical royalty rate in the United States.
The NMPA alleges that Spotify has violated the Restore Online Shoppers’ Confidence Act (“ROSCA”), section 5 of the FTC Act and various consumer protection laws. Spotify has not returned Billboard’s request for comment.
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As Billboard previously reported, publishers anticipate a $150 million loss in U.S. mechanicals in the first year of the bundling reclassification compared to what publishers would have been paid had it never happened. The decreased payments began in March with no prior warning, according to the NMPA and the Mechanical Licensing Collective (the MLC). Spotify, however, believes it is playing by the book in making the change to how it pays out U.S. mechanical royalties given that it has “bundled” audiobooks in with the other offerings included in the streamer’s premium plans.
“Spotify has declared war on songwriters,” said Israelite at Wednesday’s meeting. “Our response shall be all-encompassing.” Israelite noted that the NMPA (as well as the MLC) has taken multiple actions to stop Spotify’s bundling reclassification already. The organization’s all-out retaliation began with statements made against the company in March, followed in May by a cease and desist letter in which the NMPA threatened to file a lawsuit against Spotify for allegedly using music and lyrics in some of its podcasts and videos without permission. (Spotify called the move a “press stunt” by the NMPA).
“Our letter was not just a warning shot, and the NMPA has never lost a lawsuit. So you’ll want to stay tuned,” Israelite added on Wednesday.
Only days after the NMPA threatened legal action, the MLC filed a lawsuit against Spotify for “improperly” reclassifying its premium tiers as bundles.
The following week, the NMPA sent a letter to the Judiciary Committees in both the U.S. House and Senate asking for an overhaul of the statutory license in section 115 of the Copyright Act, which binds publishers to strict regulations and rules over what they can charge streaming services for U.S. mechanicals.
In the NMPA’s letter to the FTC, obtained by Billboard, general counsel Danielle Aguirre wrote: “The [NMPA] writes to urge the FTC to address unlawful conduct by Spotify that is harming millions of consumers and the music marketplace… Spotify has deceived consumers by converting millions of its subscribers without their consent from music-only subscriptions into ‘bundled’ audiobook-and-music subscriptions, publicly announcing increased prices for those subscriptions, failing to offer an option for subscribers to revert to a music-only subscription, and thwarting attempts to cancel through dark patterns and confusing website interfaces. This bait-and-switch subscription scheme is “saddling shoppers with recurring payments for products and services they did not intend to purchase or did not want to continue to purchase.”
Aguirre continued, “Indeed, it has all the red flags of problematic negative-option practices that the FTC has consistently warned companies about: (1) Spotify has failed to give consumers all material information about its subscription plans up front; (2) Spotify has billed consumers without their informed consent; and (3) Spotify has made it hard for consumers to cancel.”
Other letters of complaint were also sent to the attorneys general for nine states, including California, New York, Tennessee, Colorado, Georgia, Connecticut, Illinois, North Carolina, Oregon and Washington, D.C. In the NMPA’s letter to both the New York bureau chief of the consumer frauds and protection bureau as well as the state’s assistant attorney general, obtained by Billboard, Aguirre wrote: “We urge your office to investigate and address Spotify’s conduct as well.”
Letters were also sent to consumer groups including the National Consumers’ League, the Consumer Federation of America, Public Citizen Consumer Action and the National Consumer Wealth Center in hopes of sparking a class action lawsuit.
The NMPA’s recent moves are being supported by representatives Ted Lieu (D-CA), Adam B. Schiff (D-CA) and Marsha Blackburn (R-TN) via a letter sent Wednesday to Shira Perlmutter, register of copyrights and director of the U.S. Copyright Office.
In the letter, the three representatives wrote: “As members of the Judiciary Committee, which originated the Music Modernization Act, we want to see the law faithfully implemented and copyright owners protected from harm arising from bad faith exploitation of the compulsory system. Digital service providers should not be permitted to manipulate statutory rates to slash royalties, deeply undercutting copyright protections for songwriters and publishers. A fair system should prevent any big tech company from setting their own price for someone else’s intellectual property, whether the owner wants to sell or not.”
Each year, the NMPA is known for announcing major breaking news at its annual meeting — typically against tech companies that, in its view, are not properly paying for songs. Last year, Israelite announced a $250 million lawsuit against Twitter, which is still in progress. In previous years, the NMPA has gone after Twitch, Peloton, Roblox and more.
“We will see what the Federal Court in the Southern District of NY, the United States Congress, the Copyright Office, the Copyright Royalty Board, the FTC, multiple State Attorneys General and consumer advocacy groups have to say,” Israelite told the crowd on Wednesday. “Most importantly, we will see what the songwriters and music publishers who make the product that allows Spotify to exist have to say.”
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