July 2013

Is This Column a Crime?

[Commentary] Since World War II, University of Michigan economists have produced the definitive research on consumer sentiment. Their twice-monthly surveys of household spending are used by everyone from policy makers at the Federal Reserve to Wall Street traders. But thanks to an arbitrary threat of prosecution by the attorney general of New York, Eric Schneiderman, this high-quality research is no longer going to be available to anyone, any time.

Schneiderman proudly announced earlier this month that the hedge funds that had covered the costs of the Thomson Reuters/University of Michigan Surveys of Consumers will no longer get a two-second advanced feed of these data. He claimed he was striking a blow for a "level playing field." Instead, he struck a blow against research and information. The surveys rely on private funding, getting no support from the university. Thomson Reuters had paid more than $1 million a year to fund the research, from fees that traders paid to use the information for computer-programmed trading.

Richard Curtin, who has overseen this research since 1976, tells me that the loss of funding is devastating. "Out of all the challenges I have faced to fund this project over the past four decades, I never thought it would end as an unintended consequence of regulation," he says.

Apple Ruling Heaps Doubt on 'MFN' Clauses

Guaranteeing the lowest price doesn't necessarily lead to lower prices—at least as far as a handful of federal courts are concerned.

In the latest example, a federal judge ruled last week that the price-matching provision in Apple's contracts with five major book publishers was part of a conspiracy to fix e-book prices. The contracts required the publishers to give the technology giant's iTunes store the best deal in the marketplace on e-books. Other courts have taken a similarly dim view of these so-called most-favored-nation clauses, which take their name from a longstanding principle of international trade and are common in industries ranging from health care to television to financial services. But the finding by U.S. District Judge Denise Cote in the Apple case was especially significant because it was made following a trial, rather than in pretrial proceedings.

"Defendants in antitrust cases have liked to have the sound bite that no court has found an MFN to be anticompetitive," said Mark Botti, a former Justice Department antitrust lawyer now in private practice. "They can no longer say that."

Netflix Should Read Amazon's Script

It turns out 2013 has been lucky for Netflix. The stock has surged 178% so far, the best performance in the Standard & Poor's 500-stock index. But to keep the odds in its favor, the video-streaming and DVD-rental company will need to be more like an Amazon than an HBO.

Netflix's paid domestic streaming subscriber base has increased to nearly 28 million from 25.5 million at the start of 2013 and 22 million a year before. This puts it just below Time Warner's HBO. Meanwhile, Netflix's domestic streaming margin on the basis of contribution profit, revenue less cost of sales and marketing, was 20.6% in the first quarter, up strongly from 14.3% a year earlier. But expanding margins may represent a risk for Netflix. That sounds counterintuitive. But when Netflix reports second-quarter earnings on July 22, investors will be more focused on how many subscribers it added, something that may require extra spending. For Netflix, building a formidable subscriber base should be a more immediate concern than raising margins. Having more users enables Netflix to spread the costs of buying and creating new content. And rising market share should help it raise subscriber fees.

Verizon Wireless Has Commitment Issues With Apple

Is the iPhone becoming the smartphone world's Alex Rodriguez?

One data point suggests the aging all-star device may be struggling to put up the sales numbers to justify its gigantic contract. Like some rivals, Verizon Wireless appears to have made a multiyear, multibillion-dollar commitment to buy iPhones in order to get Apple's smartphone onto its network. Now, the No. 1 U.S. carrier by subscribers doesn't appear to be selling as many of the devices as it thought it could. In the short term, any shortfall could mean Verizon Wireless faces some sort of contract penalty. More important will be the likely impact on future contract negotiations with Apple. If the iPhone's sales momentum flags, watch for Verizon Wireless to throw some heat in its matchup with Apple's smartphone slugger.

Web industry officials balk at domain expansion plan

A plan to dramatically expand the number of possible Web addresses — by adding more than 1,000 new domains such as “.buy,” “.casino” and “.gay” — could cause widespread disruption to Internet operations, say some industry officials.

Efforts to augment existing domains such as “.com” and “.gov” have been underway for several years and are entering a critical new phase as industry officials meet at an international conference that began Sunday in Durban, South Africa. By summer’s end, the new domains could be going live at a pace of 20 or more each week. The plan has touched off a scramble among investors eager to gain control of the virgin Internet real estate, potentially worth billions of dollars in annual licensing fees. But a vocal group of critics is calling the speed and scale of the expansion reckless, given its possible impact on the Internet’s global infrastructure, which relies on interactions among computer networks owned by companies, universities and individual users.

Google invests in YouTube studio in LA

At Google’s vast new complex in Los Angeles, an entertainment revolution is under way. The cream of YouTube talent is shooting their crowd-pulling videos and creating a fusion of old and new media.

In books, it is the best of times, it is the worst of times

[Commentary] The global book industry is changing beyond all recognition. Writers are having to quickly adapt to the new economics of publishing.

There are more opportunities for authors than ever before but fewer commercial reasons to indulge them. Across the world, more people are reading: print sales may be slightly down but those of e-books are growing strongly. This is the fundamental context in the books business. In any discussion about publishing, the names Amazon, Google, Apple and increasingly Samsung occur just as regularly as Penguin, HarperCollins and Hachette. The technology companies are the new entrants with the muscle, money and easy distribution.

[Michel is chief executive officer of Peters Fraser & Dunlop, a literary and talent agency]

Asiana to sue San Francisco TV station over names

Asiana said that it will sue a San Francisco television station that it said damaged the airline's reputation by using bogus and racially offensive names for four pilots on a plane that crashed earlier this month in San Francisco.

An anchor for KTVU-TV read the names on the air July 12 and then apologized after a break. The report was accompanied by a graphic with the phony names listed alongside a photo of the burned-out plane that had crashed at San Francisco International Airport on July 6, killing three and injuring dozens. Video of the report has spread widely across the Internet since it was broadcast. The National Transportation Safety Board has also apologized, saying a summer intern erroneously confirmed the names of the flight crew. Asiana has decided to sue KTVU-TV to "strongly respond to its racially discriminatory report" that disparaged Asians, Asiana spokeswoman Lee Hyomin said. She said the airline will likely file suit in U.S. courts.

The Justice Department and a free press

[Commentary] The Obama Administration stumbled badly in recent months as it repeatedly overstepped its authority in seeking information from news organizations. Prosecutors swept up phone records tracking calls by reporters and editors of the Associated Press, suggested that a Fox News reporter might be criminally prosecuted and continued their vigorous pursuit of information held by reporters in ferreting out alleged leaks. For that, the administration has been properly excoriated. On July 12, however, Atty. Gen Eric H. Holder Jr. unveiled new guidelines to govern the department's behavior in cases involving news organizations. Those guidelines represent a historic step toward restraining the reach of government and affirming the rights of a free press. The Administration got to this place only because of the outrage it brought on itself, but it got to the right place anyway.

Obama must lead debate on surveillance, privacy

[Commentary] Silicon Valley has backed President Barack Obama with votes and dollars. It's time the President said thanks. He can begin by supporting Yahoo's wish to disclose its efforts to protect consumers from government surveillance.

Peoples' trust in Google, Facebook, Yahoo and other companies that collect user data depends largely on the belief that privacy is reasonably protected. President Obama should support letting the public see arguments they made showing this concern before the Foreign Intelligence Surveillance Court. Yahoo told Mercury News reporter Brandon Bailey last week it had "objected strenuously" in a 2008 case that led tech companies to cooperate with controversial data-gathering. Americans should know if Yahoo tried to protect consumers' interests. Today, the impression is that tech companies simply caved to government demands. If President Obama believes the surveillance programs he supports are critical to Americans' safety, he needs to be the Educator in Chief. He needs to help people understand what they accomplish. Having said in San Jose on June 7 that he welcomes a debate on this, he needs to lead it.