As Pandora Goes Public, How Come No One Is Pointing Out That It Misled The Press About Being Profitable?

from the the-misleading-state-of-startups dept

We mentioned this earlier, but with Pandora scheduled to go public this week, it seems to bear repeating. Over the last couple of years, Pandora, which is a service that I'm a fan of, has repeatedly told the press that it is profitable. You can see various reports on its profitability from TechCrunch, Mashable, Hypebot and News.com -- all generally good publications that don't get easily tricked. Yet, when the company filed to go public, it became clear that it wasn't profitable. Not only that, but it wasn't close to profitable and might never be profitable.

This really shouldn't be a surprise. If you knew anything about typical ad rates and the costs associated with (a) streaming bandwidth and (b) the licensing details for streaming music, the math really didn't add up. And it's just now, on the eve of what is likely to be a very successful IPO, that more people are realizing that the company is basically a money losing machine, and that its revenue doesn't cover its basic expenses:

There is a fundamental problem with Pandora Media's business model: the more its product is used, the more money it loses. That's the opposite of what makes a company viable in the long term. Nevertheless, the online music service is asking public shareholders to finance its growth so it can draw more listeners, increase usage and ... lose more money, presumably.

This is unfortunate on multiple levels. The biggest issue here is, not surprisingly, the ridiculously high costs of the licenses that Pandora has to pay. Even though plenty of folks have found that Pandora is an excellent source to discover new music, and has turned many people (myself included) on to new artists we'd never have heard of otherwise, the recording industry still demanded ridiculously high royalty rates, which it eventually extracted from Pandora. Oddly, at the time of the agreement, Pandora cheered on the deal saying that the rates made sense (and then used the deal to raise a lot more money). But with the details showing that the costs are keeping the site unprofitable, and may fundamentally make it so that the site can't be profitable, shouldn't we be questioning how reasonable those rates are? And, while we're at it, can we question the earlier claims of profitability from the company to the press? Lots of private startups make this sort of claim to the press, and they never seem to get called on it, which is why it's unfortunate that no one seems to have challenged Pandora on its claims.

Filed Under: music, profitability, streaming
Companies: pandora

Statutory Damages In Copyright Law Make It More Appealing To Sue Than To Innovate

from the problem-in-a-nutshell dept

There are all sorts of problems with copyright law today, but one of the biggest is the farce that is statutory damages. This is what allows everyone who sues someone for a single instance of copyright infringement to threaten them with the possibility of a $150,000 fine. Of course, even in situations where the $150,000 isn't available, we still end up with rulings that seem totally disconnected from any actual "harm." Defenders of the statutory damages provisions in copyright law come up with all sorts of twisted rationalizations for why ridiculously high statutory damages rates make sense, usually along the lines of saying that there's simply no reasonable way to calculate actual damages. This is, of course, silly. Even if you can't calculate exact damages, you can come up with something that at least approaches a reasonable level.

However, the completely unrealistic statutory damages have created other problems as well -- and defenders of the statutory damage rates may want to pay attention here, since it actually makes life a lot worse for the content creators copyright law is supposedly supposed to "protect." It's highlighted in some comments from Pandora's CEO Joe Kennedy, noting that it's tough to build a legitimate online music service these days because it's a better business model for copyright holders to sue:

"The statutory damages clause (of copyright law) creates a moral hazard... It's too attractive to sue. It's a better business model than saying, 'I'll partner with you and build a business.' The lawyers in the music industry spent too much time suing and fighting, in lieu of developing better business partners."

While he goes on to say they're better about it today than in the past, it's still very much true today as well. As we've highlighted, the recording industry has a long history of suing first and negotiating later. In fact, there was a time when pretty much any halfway respectable music startup was being sued by a record label. The labels recognized that hanging that liability over the startups' heads was a way to force them into a negotiating corner. That's no way to build innovative music services. And, of course, even when the labels did end up negotiating, they would use those huge statutory damage threats to wring ridiculous rates out of the startups -- rates that made it impossible to build a real business.

So isn't it about time that we dumped these statutory damage rates? Or drastically lowered them? Unfortunately, you hear no movement in that direction.

The rest of Kennedy's interview is interesting as well. He notes how it's difficult-to-impossible to build a global internet music company due to different copyright laws around the world, and the ridiculous royalty rates demanded by holders in each country. And, he notes that copyright law, itself, needs a massive rethink in the age of computers:

"There is a really fundamental problem that's going to keep coming up over and over again. Computers, in the digital world, work by making copies. I think that we're going to continue to trip over this very fundamental issue. This is the frustration of a computer-science guy in a roomful of lawyers. Until there's some conception of what a copy is in a digital world... there are going to be a whole bunch of cases that are going to be kind of a crap-shoot."

Filed Under: copyright, innovation, statutory damages
Companies: pandora

How Come No One Calls Out Pandora For False Promise Of Profitability?

from the celebrating-too-soon? dept

I'm a Pandora fan. I like the service and use it sometimes. However, I remember being surprised about a year ago when the company claimed that it was profitable. It had celebrated settling its royalty fight with the RIAA/SoundExchange by saying that the agreement allowed it to become profitable, but just doing some back of the envelope math, I couldn't figure out where that profitability came from. Last year, when I saw someone from Pandora speak about how they had something like 100 salespeople all selling ads, the numbers still didn't make that much sense. That many sales people is really expensive, and knowing the online ad business, I had trouble fitting the math in line as to how the company could possibly be profitable. Between the licensing, bandwidth and staff costs, unless they were getting insanely high ad rates, it just didn't add up.

And, yet, there were various media reports insisting the company was profitable. TechCrunch, Mashable, Hypebot, News.com and others excitedly talked up how Pandora had gone from almost shutting down to profitability by the end of 2009, and all seemed to think it was a foregone conclusion that, as Pandora promised, it was going to be profitable in 2010.

Yet, on Friday, Pandora filed for a $100 million IPO, and the filings show that the company is still a long way from profitability. And, now, the company that talked up how profitable it was going to be in 2010 is claiming it might not really be profitable until the end of 2012 or later.

As expected, the SoundExchange agreement is not at all reasonable -- representing a huge chunk of Pandora's expenses -- 45% of its revenue went to SoundExchange in the first 9 months of 2010. On top of that, Pandora is currently in another fight with ASCAP, who wants a bigger chunk than it was already getting as well. And, of course, Pandora is stuck in the US unless it can negotiate better rates around the globe. Basically, copyright costs are making it so that an otherwise useful service is unlikely to survive. You can read the full S-1 if you'd like to see more.

I do hope that Pandora figures out a way to survive, and continues to improve its service. However, I'm curious why so many folks in the press were happy to claim that the company was profitable, and cheered on the fact that it was going to be profitable for 2010, when the reality shows that it still has a long way to go before it'll really be profitable.

Filed Under: ipo, journalism, profitability
Companies: pandora

Spotify May Not Spur Music Sales; But What If It Makes Music Consumers More Valuable?

from the lifetime-value? dept

There was some news a few days back about how people who use Pandora end up buying more music, while people who use Spotify do not. Of course, if you understand these two services, this should be completely obvious. After all, Pandora is like radio -- with a bit of randomness, and no real way to just play what you want. Spotify, on the other hand, is designed to replicate your music collection -- a cloud-based iTunes. Unfortunately, those who focus too narrowly on the idea that music sales is the music business may find this news as further support for moving away from services like Spotify. On top of that, I've heard from people who were at the conference where this "research" was announced, and it turns out that the guy presenting it never mentioned Spotify at all. It's just that the press is assuming he meant Spotify.

However, either way, just looking narrowly at music sales is a mistake. As we've discussed, selling music is not a very good business any more, but that doesn't mean that there aren't good music business models -- it's just that selling music probably isn't one of them.

With that in mind, it's worth taking a look at a recent report put out by Will Page, an economist for PRS in the UK -- and the guy who put out that report last year showing that the music industry was actually growing, not shrinking, when you looked at all the component parts. In his latest report, Page takes on the question of "average revenue per user" (ARPU) when it comes to the music consumer out there -- with a specific look at Spotify (and, unlike the NPD report that's getting all this press, Page actually has real info about Spotify).

Around here, we're used to hearing about ARPU in the context of telcos. It's a stat that telco execs and Wall Street money folks obsess over. Five years back, we warned why the telcos obsessive focus on ARPU was dangerous, and could lead to bad long-term strategic decisions. Page's report effectively suggests the same thing is true in the case of the music business. With the move to various music services, such as Spotify and Pandora, there is a sudden push to look at "ARPU" of music consumers as well -- and if the average music buyer in the UK spends £63 on music, and Spotify can get them to sign up for a £120 plan, that seems like a pretty good thing. Right?

But, as Page notes, the real story is a hell of a lot more complicated than that. What if Spotify is picking off just the "top users" who were actually spending £150 per year? Or, what if it's getting people who didn't buy music at all to pay for subscriptions? Then, any direct revenue is incremental, and the pricing could really matter -- since lower prices could bring in a lot more total revenue by bringing new "buyers" into the market. Furthermore, just focusing on the ARPU from direct payments for music (sales or subscriptions) misses a big part of the story. Live shows are a large and growing part of the market, but don't make it into such calculations. Merchandise and other direct-to-fan offerings also probably aren't included in many of those calculations. And, in fact, we've heard that Spotify is looking to enable those other business models as well -- and isn't just focused on the obsolete metric of "music sales."

As such, services like Pandora and Spotify shouldn't necessarily be judged on how much they contribute to plain old music sales, or even direct ARPU -- but how much they drive people to spend money within the music ecosystem -- and then figure out where that money goes, and whether or not it's allocated in a way that benefits or harms the various players in the space. If Spotify helps make every other aspect of the music industry more valuable, but depresses the market for direct music sales, that shouldn't be seen as a bad thing at all.

Once again, it reminds us of the necessity to not get too narrowly focused on a subsegment of the market when trying to figure out what's happening -- but to explore the larger ecosystem of how much money is being generated around music -- and then we can look at where it goes and what it funds. That is, we shouldn't be worried about how much people spend on horse carriages, but on transportation. So remember that whenever you hear numbers being thrown around about how much money is being made or "lost" in various industries. If you don't look at the overall ecosystem, you often miss what's happening.

Filed Under: arpu, ecosystem, lifetime value, music, music sales
Companies: pandora, spotify

Why Did Pandora Sign Away Its Right To Petition The Copyright Royalty Board For Lower Rates?

from the well,-that's-obnoxious dept

It's already quite troubling that Pandora appears to be supporting the RIAA bailout tax against radios (Pandora's competitors), but now we have a better understanding of why, thanks to a little birdie who highlighted what's going on. Among the nasty little hidden gems in the recently agreed to webcaster settlement agreement (pdf) is that, if you want the lower rates in the settlement, you have to remove any objections to previous rate arbitrations and not participate in any future Royalty Board fights over royalties:

Article 6

Non-Participation In Further Proceedings
CPB and any Covered Entity making Web Site Transmissions in reliance on this Agreement shall not directly or indirectly participate as a party, amicus curiae or otherwise, or in any manner give evidence or otherwise support or assist, in any further proceedings to determine royalty rates and terms for digital audio transmission or the reproduction of Ephemeral Phonorecords under Section 112 or 114 of the Copyright Act for all or any part of the Term, including any appeal of the Final Determination of the Copyright Royalty Judges, published in the Federal Register at 72 FR 24084 (May 1, 2007), any proceedings on remand from such an appeal, or any other related proceedings, unless subpoenaed on petition of a third party (without any action by CPB or a Covered Entity to encourage such a petition) and ordered to testify in such proceeding.

Basically, this takes away the right of any company to fight for more reasonable royalty rates in the future -- which doesn't seem like it should be allowed. Based on this, there's basically no one left who can protest future rate increases -- which means that the RIAA/SoundExchange will easily be able to repeatedly push through greater rate increases.

Thus, since Pandora and the other webcasters won't be able to protest higher and higher rates, it needs to drag others into the fight to get help protesting constant massive rate increases: hence its support of the Performance Rights tax. In theory, if the NAB (who represents radio broadcasters) gets dragged into the fight, then there's a big dog who isn't subject to the draconian clause above, and can push back on the Copyright Royalty Board for lower performance rights taxes. Of course, that assumes that the NAB would fight for lower overall rates, rather than just focusing on rates for radio, and leaving the webcasters to fend for themselves...

No matter how you look at this, it's stunning that Pandora and other webcasters would sign away their right to state their own case in front of the CRB. RIAA/SoundExchange are laughing all the way to the bank. They get to make their case to increase royalty rates... while those who get stuck with the royalty rates have to shut up and take it. Regulatory capture at its finest. Again, we're left wondering why the Copyright Royalty Board even exists. Why are a group of old judges setting the price of music anyway?

Filed Under: copyright, copyright royalty board, performance rights
Companies: pandora

Pandora Continues To Push Users To Vote For Shameful Radio Performance Tax

from the can't-compete? dept

We mentioned back in July how Pandora was urging its users to support the Performance Rights Act, which is effectively a government bailout for the RIAA by taxing already struggling radio stations for the right to help promote the RIAA's music. It's a travesty. The only reason Pandora supports it is because Pandora was pressured into its own ridiculous webcasting rates and wants to help bring down radio too. While I like Pandora as a service, I think it's shameful that it's now using the political process to burden competitors with a government created tax, that goes straight to the RIAA.

Apparently, Pandora has once again ramped up this effort to have the government tax its competitors. A whole bunch of you have been forwarding these ridiculous emails from Pandora that urge people to contact their elected officials in support of the RIAA Bailout bill. Most of those submitting those emails to us have said that you'll be doing the exact opposite, and are offended that Pandora is pushing you to support such a thing.

Yes, Pandora, it sucks that you got stuck with ridiculous webcasting rates that will make it difficult to remain profitable, but that's no excuse for trying to get the government to dump an unfair tax on your competitors.

Filed Under: bailout, performance rights act, radio, webcasters
Companies: pandora, riaa, soundexchange

Pandora: If We're Getting Taxed So Heavily By SoundExchange, Radio Should Be Too

from the strange-bedfellows dept

Well, this is rather disappointing. Just days after caving in and agreeing to new webcaster rates that will harm pretty much everyone, Pandora has gotten right into bed with the RIAA/SoundExchange in supporting the Performance Right Act (the RIAA Bailout Act) to extend a similar unnecessary tax on radio. Pandora's reasoning is no surprise: basically it's saying that if it has to pay such a silly tax to help promote musicians, it's unfair that radio stations get away without paying something similar. But, still, it's disappointing. Rather than looking at adding value to the overall market, Pandora has basically decided that it's "enemy's enemy is a friend" and is supporting such a law simply because it will harm radio stations. This makes me think significantly less of Pandora.

Filed Under: bailout, performance rights act, radio, webcasters
Companies: pandora, soundexchange

Why The New Webcasting Rates Are A Death Sentence For Webcasters

from the plainly-ridiculous dept

When the announcement came out this week that webcasters had somehow "come to an agreement" with SoundExchange over webcasts, what was unbelievable was that many presented this as a "victory" for webcasters. Hell, even SoundExchange made public statements about how it was disappointed by the rates, but it was an "experiment." But when you looked at the actual numbers, this made no sense. The rates are ridiculously high when compared to royalty rates for traditional radio or satellite radio. Michael Robertson breaks down the numbers and explains away the myths of this deal. It will almost certainly bankrupt nearly every webcaster out there. Robertson focuses on the big webcasters, and points out that the 25% royalty rate promoted by the press isn't accurate at all, and for a company like Pandora the real rate will be north of 40% of revenue -- which is not even close to sustainable.

Meanwhile, small webcasters don't get much of a break either. Live365 is pointing out that these rates will basically kill off every webcaster it hosts by requiring a $25,000 fee. As the company notes, the guy running the Armenian folk music station for $10/month isn't going to pay $25,000 and certainly isn't going to make enough revenue to pay up.

Make no mistake: these new rates are effectively going to kill off a significant portion of online webcasters. The recording industry, of course, doesn't find this problematic, because they don't like the fact that they can't control webcasters the way they can radio, so they are fine with taxing them out of business. But what a waste of what technology allows. These days, anyone can and should be able to effectively express their own musical views by webcasting what they like. And that's about to become prohibitively expensive for no reason other than that SoundExchange/RIAA have a gov't granted monopoly over any kind of broadcasting.

Filed Under: copyright, royalties, webcasting
Companies: live365, pandora, soundexchange

Why Should Webcasters Pay 25% Of Revenue To Promote Musicians?

from the how-is-this-possibly-good? dept

After years of back and forth negotiating (and more than a couple public spats), it appears that SoundExchange and music webcasters like Pandora have finally worked out an agreement on webcasting rates. If you don't recall, the Copyright Royalty Board assigned absolutely ridiculous royalty rates a few years ago, which seemed to have no bearing on reality (random aside: no one has yet explained why we feel it's okay for a small group of judges to determine what is a "fair rate"). The original rates would almost certainly put most webcasting operations completely out of business. But before delivering that death sentence, SoundExchange, the RIAA-spinoff that gets to collect the money (and has a long history of hanging onto it for longer than necessary and having trouble "finding" the artists it owes money to), thankfully agreed to hold off enforcing the new rates while everyone negotiated.

Since then, there has been a wide variety of back and forth details until the official agreement was put in place today... and even though many of the news stories present this as SoundExchange somehow backing down and "Pandora" winning, the details, frankly, seem so out of touch with reality it's difficult to see how it makes any sense at all. The main issue is performance rights, which radio stations already don't have to pay because radio is helping to promote artists. The idea that webcasters/broadcasters should need to pay artists for the right to promote them to fans just seems bizarre and borderline incomprehensible in the first place.

Also worth noting is that the royalty rates that traditional broadcasters do pay (to composers/songwriters/publishers) averages out between 3 and 4% of revenue. So, if you really had to come up with a reasonable rate to pay performers as well, you might think that it would start around that same 3 or 4%. Even that would be a pure bonus for performers who are used to getting nothing as a royalty (tax) from radio. But... no. The agreement is an astounding 25% of revenue as a bare minimum, with a requirement to kick-in $25,000 just to be a webcaster at all.

Pandora claims they're happy about this because it keeps Pandora in business (and settles a big legal dispute, which hopefully allows them to go raise some money to stay in business). But it's a stunningly large percentage of revenue that will make things prohibitively expensive for most webcasters to really stay in business. You now have to have huge margins to get anywhere in a notoriously competitive business.

Who loses? Well, just about everyone outside of SoundExchange/RIAA. Already, despite being happy about this deal, Pandora has announced that it's sharply curtailing its free service, and if you listen to more than 40 hours per month, you'll need to start paying. Most webcasters now have a huge expense that will make it difficult for many of them to remain in business at all. Musicians are severely harmed as well. While a few top musicians might get a new royalty check from SoundExchange (when and if it gets around to "finding" those artists), most musicians will now get less exposure, making it that much more difficult for them to put in place the successful modern business models needed to succeed today. This basically just rewards the RIAA/SoundExchange and a few large artists who will get an extra royalty check. Everyone else is worse off.

Some might say the NAB and traditional radio stations also make out nicely, in that since these rates may harm webcasters, it takes away some competition, but even if the radio stations are happy in the short-run, it's a bad deal. These rates, certainly, will likely influence any eventual "performance right" that's added to terrestrial radio, and could significantly jack up the cost of running a regular radio station as well.

We're living in an era of amazing technological progress, where it's easy for anyone to go out and promote musicians to others and help get those musicians and a larger audience, and all the RIAA has done, time and time again, is work as diligently as possible to prevent anyone but itself from promoting artists. What a shame. This "deal" does nothing to help up-and-coming artists and will significantly limit their ability to get their music noticed.

Filed Under: performance rates, promotion, royalty rates, webcast
Companies: pandora, riaa, soundexchange

Ocean Tomo Patents Being Used To Shake Down Companies That Have Online Recommendations

from the ebay-for-patent-trolls dept

Ocean Tomo is a company that's been around for a few years, trying to establish itself as the auction house for patents. I've already made clear how troubling I believe its business model to be, but the company always tries to put a friendly face on it, claiming that it's not about aiding so-called "patent trolls" but actually reducing the problem of patent trolling. However, that (of course) isn't what's actually happening. A patent on personal recommendation systems ("if you bought x, you'll like y") was bought via Ocean Tomo by what seems likely to be a bunch of lawyers under the company name Quito (though, it's not entirely clear who's involved) and is now being used in a lawsuit against thirteen big internet companies that employ any type of rating system. The companies being sued are: Netflix, Amazon, Yahoo, RealNetworks, last.fm, Pandora Media, Slacker Inc., Veoh, Hulu, NBC Universal, CBS, News Corp., and Strands.

As you look through that list, you'll recognize that some have done significantly innovative work in taking the concept of an online recommendation system and actually making it useful. The simple idea of doing recommendations is pretty straightforward. Making it work well? Not so much. Hell, that's why Netflix is offering $1 million to anyone who can improve their recommendation engine by just 10%. The basic ideas expressed in the patent are not where the value in these recommendation systems lies. It's in the actual effort of figuring out how to make them work better. This patent has nothing to do with the actual success of a recommendation system, but the holders of it may now get a pay day just for holding the patent, thanks to Ocean Tomo's auctions. And, of course, this means that all of those companies that were actually innovating will, at the very least, now need to spend legal dollars defending against this massive innovation blocker.

Filed Under: patents, recommendations
Companies: amazon, cbs, hulu, last.fm, nbc universal, netflix, news corp., ocean tomo, pandora, quito, realnetworks, slacker, veoh, yahoo