The Sultans of Stream: How Big Streaming Services Have Used Their Oligopsony Power in the Music Industry to Leave Millions of Musicians in Dire Straits
By
By
Benjamin Stevens[1]*
Over the last few years, music streaming services have become the predominant channel through which music is consumed by listeners throughout the United States.[2] However, even with millions of subscribers and $2.1 billion in venture funding, royalty payments to musicians from services like Spotify have “slow[ed] to a trickle.”[3] The economic wheelhouse underlying the music industry, which has been described as “a torrent of micropennies,” continues to churn out smaller and smaller royalty amounts even though the popularity of streaming services continues to grow and cannibalize traditional record, CD, and download sales.[4] In theory, streaming platforms offer tremendous utility to artists and consumers.[5] For artists, the services provide a medium in which everyone, no matter how small, can display their music; for consumers, services provide cheap access to an unlimited catalog of music. The issue, however, is that the growth of the pie—the total amount in fees that consumer pay-in—has slowed, while the individual pieces—each artists’ share of the revenue—has shrunk, as the channels of compensation become more and more concentrated.[6] With no bargaining power, artists cannot negotiate for a larger piece of that pie; in fact, they do not even have a seat at the table.[7]
As a result, streaming services are using their dominant collective market power to curtail upstream producers’ compensation to create a stagnant, low pricing model for the benefit of their consumers. The prices for monthly streaming subscriptions were arbitrarily set to create a revenue stream that, at critical mass, could fairly compensate artists; however, even though the number of users continues to climb, artists still make less.[8]
The unlimited streaming model creates major issues for artists, songwriters, and music producers who rely heavily on streaming revenue.[9] Furthermore, the benefits to consumers may be short lived as long-term systemic issues, many of which have historically plagued the music industry, continue to be exacerbated by the current model.[10]
Moreover, the financial plight of artists—including many in South Carolina—has spiraled into new depths in the wake of COVID-19, which has resulted in a substantial loss in revenues from cancelled live events and concerts.[11]
Monopsonic practices have been considered by courts in the United States a violation of the Sherman Antitrust Act.[12] Specifically, Section 2 of the Sherman Act protects U.S. markets from illegal competitive conduct by sellers and buyers.[13] Traditionally, antitrust litigation has been used primarily to protect consumers from a host of anticompetitive practices like collusive horizontal restraints ( e.g., price fixing) and market monopolization; however, through the evolution of the economy and the complex nature of modern business models, new forms of anticompetitive practices with more indirect consequences for consumers have emerged.[14]
The principal objective of this Note is to promote a more expansive understanding and implementation of age-old antitrust law to address the substantial economic harms that monopsonists and oligopsonists pose to labor markets. Specifically, I will highlight the oligopsonistic tendencies of large music streaming services and address how these practices have impacted—and will continue to impact—artist compensation.
In Part II, I begin by traversing the history of compensation in the music industry from the early “record industry model” through the advent of the internet and early streaming programs. Next, in Part II, I will discuss the current framework for pro-rata artist compensation and the widespread utilization of unlimited streaming models. This model has had adverse effects on many artists throughout the United States, and I will explore this by chronicling some of the issues facing artists in South Carolina. Additionally, I explore the buy-side anticompetitive practices of monopsonists and oligopsonists and how they affect markets similarly to the more heavily litigated anticompetitive practices like collusive price-fixing and market monopolization. I then explain how streaming services have established an oligopsony in the recorded music industry.
Finally, in Parts III and IV, using Sections 1 and 2 of the Sherman Antitrust Act, I will attempt to analyze the conduct of music streaming services to create a framework for which a plaintiff in an antitrust action could prove its illegality.
To understand the complex economic ecosystem through which the music industry operates, one must first understand the basic copyright law that governs musical works. Copyright protections give owners of sound recordings exclusive rights to perform, reproduce, distribute, display, and adapt their own works.[15] There are two different types of copyrights in a musical work that an artist or record label could own: (1) a master copyright, which covers the performer’s right to a work, and (2) a compositional copyright, which covers the composer of the music and the writer of the lyrics.[16] Both of these copyrights can be owned by the same person, if that individual either wrote or composed the copyrighted work and is performing it in the sound recording [17]
Copyright law allows the copyright holders of original creative works to exercise “a set of exclusive property-like rights.”[18] Copyright holders may also allow others to exercise rights to the copyrighted work.[19] Generally, this granting of rights to another comes in the form of a license which is exchanged for a royalty fee.[20]
There are six types of music licenses: synchronization licenses, mechanical licenses, public performance licenses, print right licenses, theatrical licenses, and master licenses, all of which are used in some capacity by digital streaming platforms to display copyrighted work to consumers.[21] However, for standard streaming purposes, services must have both mechanical and public performance licenses.[22]
Mechanical licenses are “issue[d] on behalf of the copyright owner or his agent, usually to a record company, granting the record company the right to reproduce and distribute a specific composition at an agreed upon fee per unit manufactured and sold.”[23] The record company will then license that mechanical license to third parties like streaming services or Performance Right Organizations (PROs).[24] Because there are no physical albums in the digital music space, the mechanical licenses cover the right to reproduce and distribute the digital version of a copyrighted work.[25]
On the other hand, public performance licenses are issued “on behalf of the copyright owner or his agent granting the right to perform the work in, or transmit the work to, the public.”[26] Copyright law has construed audio-streaming on Spotify, Amazon Music, Apple Music, Tidal and other platforms as a form of transmission to the public.[27] As a result, streaming services are required to obtain public performance licenses for every work.[28] Instead of going to every single artist to individually negotiate licenses, transmitters of musical works such as streaming services, radio stations, and television stations sometimes acquire what are known as blanket licenses.[29] Blanket licenses are issued by a rights holder or their representative which allows for use of their entire catalog for a pre-determined period.[30] These blanket licenses can be bargained for between the rights holder and the purchaser, or they can be purchased through a larger catalog owned by a PRO.[31] There are several major PROs in the United States: Broadcast Music, Inc. (BMI), American Society of Composers, Authors and Publisher (ASCAP), and the Society of European Stage Authors and Composers (SESAC).[32]
Artists do not typically own exclusive copyrights to their work and this fact is at the crux of the many issues that artists have faced since this advent of the music industry.[33] Artists are usually signed by a record label and a publishing company who then pay all upfront costs associated with creating, marketing, and distributing their music to the masses.[34] In exchange, artists typically transfer their copyright to the labels for a defined period.[35] In the interim, the artist will agree to a contract where they receive an up-front payment—which is usually recouped by the label from later sales—and then subsequent royalty payments.[36] With such contracts, artists not only must surrender the licenses to their work but also must divvy out the majority of their royalty payments to lawyers, publishers, management, and other contributors.[37] Moreover, musicians are not treated like employees of the label.[38] They receive no benefits or guarantees.[39] More often than not, they are dropped when their music fails to garner significant commercial success.[40] Of the industry’s notoriety, writer Hunter S. Thompson once said, “the music business is a cruel and small money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There’s also a negative side.”[41]
The bedrock of the modern music industry was firmly established during “the record industry” era between the 1950s and the turn of the twenty-first century.[42] During this period, the music industry was dominated by a handful of powerful record labels who had a profound impact on artists and consumers, both creatively and financially.[43]
Signing a contract with a large label was incredibly difficult for artists, but a large label contract so greatly increased their probability of commercial success.[44] The major record labels (“majors”) contrasted greatly from the smaller Independent (“Indie”) labels.[45] The majors relied on the “star system,” in which they spent less on new talent and more on a few stars.[46] Paired with the expense of developing talent, this practice often resulted in lower compensation to hedge against risk.[47] However, music was culturally significant in the United States and the music record industry became a powerful monolith in American society.[48]
The impact of powerful record labels was also felt profoundly by consumers.[49] During much of this period, music preferences were influenced by what was in “circulation,” which was the music that record labels considered marketable.[50] And since physical records and CDs were the only way to own a certain piece of music, large record labels thrived.[51]
This ecosystem elicited booming record sales in the 1990s, with the year 1999 considered the high-water mark for recorded music revenues.[52] However, disruptive technology, spearheaded by the internet, would result in revolutionary change for the industry.[53]
Of all the inventions of the last thousand years, very few had as profound of an impact on the music industry as the invention of the internet.[54] Leading the charge in the late 1990s was the peer-to-peer file sharing software called Napster.[55] Napster’s software allowed users to share an unlimited number of digital audio files with other users around the world for free and, at its peak, had approximately 80 million registered users.[56]
Though a revolutionary method of music consumption and a precursor to the current era of the music industry, Napster’s impact on artists was largely negative.[57] Since music was shared for free and the site had no advertisements, there was no monetization of the system.[58] Because Napster held no mechanical or public-performance copyrights to any of the music on its platform, it was committing widespread copyright infringement.[59] In essence, Napster was a pirated music program and soon faced a tidal wave of litigation from record labels, music producers, and famous artists.[60] Though Napster attempted to become a legitimate music vendor, the legal battles were its death knell, and its impact continues to mar the legacy of the industry in the early 2000s.[61] However, for several reasons, Napster’s legacy proved to be a crucial crossroads for the industry.[62]
First, Napster proved that the future of music consumption was digital. Though it would be another ten years until digital download sales would surpass physical CD and record sales, Napster’s digital platform showcased the ease and utility of online access to music.[63] Its demise allowed for well-resourced technology companies, like Apple, to create legitimate digital music platforms.[64] Second, Napster’s unlimited music model would be the future for music consumption. Third, the Napster failure evidenced the fragility of artist copyright protection in the internet age.[65] With the rise of illegal downloading through the internet, artists, labels, and industry associations would have to guard against a new more pervasive music piracy threat.
In 2001, Apple released the iTunes media platform as a music player application for Mac computers that allowed users to purchase digital music.[66] Soon after, the company released the Apple iPod, a mobile MP3 player that allowed users to listen to downloaded iTunes music on the go.[67] In Apple’s first press release for iTunes 1.0, the company prophetically alluded to the role iTunes could play in changing music consumption: “iTunes is miles ahead of every other jukebox application, and we hope its dramatically simpler user interface will bring even more people into the digital music revolution.”[68]
Uniquely, iTunes charged a 99-cent fixed price per song.[69] For consumers, the ability to own individual digital works allowed them to tailor their music libraries exactly to their preferences.[70] Moreover, the iPod allowed users to take their expansive catalogs of music anywhere.[71] Digital music was more accessible, customizable, and portable than ever.[72] For artists, the 99-cent era was detested by many.[73] Pete Townshend, legendary guitarist for The Who, famously referred to iTunes as a “digital vampire” that sucked profits away from artists.[74] On average, artists were making approximately $2.30 from an album sale and $0.69 for each downloaded song.[75] At that rate, musicians would need to sell 547 albums or 1,826 songs per month to earn a minimum wage salary.
Furthermore, the issues with pirated music persisted through much of the 2000s.[76] Similar to its precursor Napster, LimeWire provided users with another open source service to share illegally downloaded music.[77] According to one LimeWire user, “By using it, you were breaking the law, and in trying to find any given song or video, you might accidentally download porn or malware, putting the computer itself at risk. It was as reckless as unprotected sex.”[78] Like Napster, the service was incredibly popular and, at its peak, had 50 million monthly users.[79] However, in 2010, LimeWire too had its day in court after its near decade of copyright infringement.[80] The court shut down the website and later determined that LimeWire had “engaged in purposeful conduct that fostered infringement, with the intent to foster such infringement” and levied additional fines to be paid to record companies.[81]
The 2000s, considered by some “[m]usic’s lost decade,” saw profits from music sales slashed in half.[82] Total revenue from U.S. music sales and licensing decreased from nearly $14.6 billion in 1999 to $6.3 billion in 2009.[83] As the music industry limped out of the 2000s, a new era emerged. As a result of the successes of early unlimited models, noninteractive services sites like Pandora and Spotify began to grow in popularity among users.[84] Spotify, unlike Pandora, allowed users to listen to any song by most artists as many times as they liked for a monthly subscription fee.[85] Spotify’s business model relied on immense investor backed capital to obtain the rights of much of their music library with hopes that, eventually, the subscription fees would reach to the point of breakeven, allowing the streaming platform to be self-sufficient.[86] For Spotify and consumers, this model has been successful. For artists, however, the model has undercut the little bargaining power they have had by allowing consumers to access an unlimited catalog of music for a low, stagnant price.[87] Moreover, what users are paying is further diluted as a deluge of artists capitalize on the ease of displaying their work on Spotify.[88] The result is a market flooded with talent with not enough revenue to go around.
During the passage of the Digital Millennium Copyright Act in 1995 that helped pave the way for digital music consumption in the twenty-first century, the Senate Judiciary Committee gave a weighty warning. “Of all of the new forms of digital transmission services, interactive services are the most likely to have a significant impact on traditional record sales, and therefore pose the greatest threat to the livelihoods of those whose income depends on revenues derived from traditional record sales.”[89] What Congress did not foresee is that the “interactive audio services” not only posed a tremendous threat to the livelihood of those who depended on traditional record sales, but they also drastically undercut basically anyone who depends on the sale of music in general.[90] Spotify, Amazon Music, Apple Music, and other streaming services use what is called the pro-rata system of royalty distribution, where all the money collected from subscribers and ad revenue goes into one large pot.[91] The pot is then divvied out according to each artist’s total number of streams.[92] If a top artist accounts for ten percent of all streams that month, they are given ten percent of the pot. Subscribers commonly misconceive that their individual subscription payments go to the artists who they choose to listen to, but that is not the case.[93] On top of that, the system also relies on algorithmic recommendations, top charts, and tailored music playlists that perpetuate the success of artists with mass appeal.[94] As a result, middling artists, already vying for their share of streaming profits, are drowned out by top earners.[95]
Though the true numbers are often debated, it is estimated that artists receive between $0.0011 and $0.004 per stream from Spotify, between $0.007 and $0.01 per stream from Apple Music, and between $0.0033 and $0.01 for Amazon Prime.[96] There are several other major players like record labels, publishers, agents, producers, and PROs who are also jostling for position under the strict compensation models imposed by the subscription systems.[97] It is difficult to break down how much an artist makes per stream due to the numerous factors that go into each individual’s compensation.[98]
In 2021, Spotify released its “Loud & Clear Initiative,” a website dedicated to educating artists and consumers on the music industry’s complicated nature—and Spotify’s role within it—in an attempt to bolster transparency regarding their compensation practices.[99] Though the initiative’s website does not lack in colorful charts, interactive features, and informatory videos, there is one blatant absence: any accountability for low artist compensation.[100] Instead, Spotify touted their role in bolstering profits in the music industry by 50% since 2014 before shifting the majority of the blame to the copyright holders—the record labels, PROs, publishers, and other third parties.[101] In Spotify’s opinion, it is these parties that ultimately broker the contracts that have led to the issues underlying artists’ compensation.[102] Copyright holders have never been shy about taking a large chunk of musicians’ earnings in the past; however, they have been a common denominator in the music business since the advent of the record.[103] The labels, PROs, and production companies are the control group; they are the chameleons who have managed to morph themselves and adapt every time a new technological development changes the intricate color patterns of the industry. The issue is not with these entities, but the new players, the streaming services—the platforms that provide an unlimited catalog of music for one set price.
One argument is that the novelty of streaming services is to blame and that disruptive technology always has unforeseen consequences.[104] For instance, artists did not make “big money” at the advent of CDs, but growth in usage and widespread adoption resulted in higher royalty payments, and the same process could be true for music streaming.[105] However, the main concern with the widespread adoption of streaming is that the exact opposite has occurred.[106]
In 2021, streaming services accounted for 84% of the total recorded music revenues in the United States, with over 82 million paying customers—nearly tripling the number of consumers paying for music subscriptions in 2017.[107] Logically, more subscribers should result in higher royalties for artists, but that has not been the case. Spotify’s payout rates have gotten worse over time.[108] In 2014, Spotify paid $.00521 per stream on average, but two years later, the average rate dropped to $.00437 per stream.[109] In 2017, the average pay rate was reduced again to around $0.00397, and now it hovers near an estimated $0.0023 to $0.004.[110] The reduction in average pay rate has led to widespread anger, frustration, and a general feeling of existential dread among artists.[111]
Some regulatory action has already been taken to address the new plight of artists.[112] In 2018, Congress was pressed into action to resolve the multitude of conflicts created by modern streaming services by proposing the Orrin G. Hatch Music Modernization Act.[113] The Act was created to update the music licensing landscape “to better facilitate legal licensing of music by digital services; [to] provide certain protections (and exceptions to those protections) to pre-1972 sound recordings; and [to] address distribution of producer royalties.”[114] And though the Act has established a new system to provide artists with a more streamlined royalty collecting process and better protection from online music piracy, it has neither addressed age-old artist abuse by labels nor the new threat to artist compensation posed by music streaming services.[115]
Many musicians call South Carolina home due to the state’s strong tourism industry.[116] In a 2020 Bureau of Labor Statistics report, musicians and singers in the Myrtle Beach, South Carolina metropolitan area were paid some of the highest hourly wages in the country.[117] Additionally, Charleston has also been regarded as a culturally significant place for the music industry.[118] Since 2020, the overall health of the music ecosystem in South Carolina, just like much of the nation, has been heavily affected by the COVID-19 pandemic.[119] Many artists in the state have long depended on profits derived from concerts and live performances to make ends meet.[120] As a result of the pandemic, the concert industry lost $30 billion in 2020 alone.[121] Historically, artists have been forced to rely on other sources of income from industries like food and beverage to pursue their music aspirations.[122] Yet, like the live music industry, food and beverage was also substantially effected by the pandemic.[123] Though the music industry is healing, the lasting impact of the pandemic will continue to be felt both mentally and financially.[124]
In 2019, separate groups of local musicians in both Charleston and Spartanburg held a rally to protest Spotify’s business model and its inability to pay artists fairly.[125] Leading the charge in Charleston was electronic artist Diaspoura (Anjali Naik), who stated, “I think artists, especially, are so giving because it is a passion project for so many of them, but a lot of times artists get taken advantage of because they love their work and they’re willing to do it for free or at a very low cost.”[126]
The music industry is sick. Yet, Spotify does little to ensure that artists can make a living wage from streaming revenues. The ability to ignore the pleas of their artists is directly attributed to the streaming services tremendous buyer-power in the music industry allowing them to be the sole arbitrator in the recorded music market.
While monopolies and oligopolies have been litigated (and studied) for over a century, the concepts of monopsonies and oligopsonies are comparatively unknown to lawyers, judges, and legal scholars. A company has “monopoly power” when it has the ability to control prices in the relevant market or exclude competitors from that market.[127] In an oligopoly, a small number of entities “control[] most of the sales in the relevant market.”[128] As a result, “[w]ith so few sellers, oligopolists find it easier to coordinate their behavior to maintain prices above the normal competitive level.”[129] Typically, monopolies and oligopolies manifest their monopoly and oligopoly power by controlling pricing, usually by raising prices above fair market level.[130] The impact of this type of pricing, known as predatory pricing, is then felt by consumers who are forced to pay more for products.[131]
By contrast, a monopsony occurs when a company has the power to control prices in a market but manifests its power by forcing prices below fair market level.[132] Moreover, an oligopsony is where several companies coordinate to exert downward pressure on input prices.[133] The result in both cases is what is called “buy-side power,” where an exclusive number of entities have the power to control the price of the inputs they purchase.[134] Naturally, many assume that this market activity is beneficial for consumers, as they would be paying less for products. However, it is not that simple because the negative impact is most directly felt by the upstream producers.[135] Upstream producers are the entities or individuals who sell inputs to the monopsonist or oligopsonists.[136]
For example, imagine a town with one grocery store. Outside of the town, several small farms sell their vegetables to the owner of the store. At some point, the grocer may choose to lower the price of its vegetables, which would result in a rise in demand. On the other side, however, the grocer could use its buy-side power to demand the farmers to sell their vegetables for less. If there were no other buyers to replace the volume of the grocery store, the farmers would be coerced into accepting the lower prices. The farmers, with no alternative market to sell their vegetables, must acquiesce or be forced out of business completely. As argued by the Organization for Economic Development, “By practicing price discrimination, with all-or-nothing offers, a monopolist can extract the maximum from consumers, and a monopsonist can extract the maximum from suppliers, without any reduction in output.”[137]
The brunt of monopsony power is often felt by labor markets.[138] “[M]onopolization of product markets and monopsonization of labor markets pose exactly the same challenge to the economy—mispricing of resources (material or human), resulting in their underemployment, which both harms the economy and results in inequitable outcomes.”[139] The Supreme Court has observed that “the kinship between monopoly and monopsony suggests that similar legal standards should apply to claims of monopolization and claims of monopsonization.”[140] In fact, the principal difference between monopolies and monopsonies is the chasmic disparity in case law on the topics, a phenomenon that can largely be attributed to the more attenuated connection between buy-side market power and consumer harm.[141]
One such powerful proponent of an expanded understanding of antitrust law is Justice Brett Kavanaugh of the United States Supreme Court who has addressed this issue in his dissent in United States v. Anthem, Inc. and his concurrence in Alston v. NCAA.[142] At the time that Anthem was decided, Justice Kavanaugh was a Judge on the United States Court of Appeals for the District of Columbia.[143] Anthem was an antitrust action brought by the U.S. Department of Justice (“DOJ”) in response to the merger of Cigna and Anthem, the second and third largest health insurers in the country.[144] It was considered “the largest proposed merger in the history of the health insurance industry.”[145] The majority struck the merger down under Section 7 of the Clayton Act, arguing that the creation of a highly concentrated healthcare market would inevitably lead to anticompetitive effects and higher prices for consumers.[146]
Yet, in his dissent, Judge Kavanaugh took a more nuanced approach.[147] He argued that the most troubling effects of the merger would be the negative effects on the “hospitals and doctors in the upstream provider market” and not the rising health care prices for consumers.[148] Importantly, Judge Kavanaugh framed the merger as Anthem and Cigna “wield[ing] its enhanced negotiating power to unlawfully push healthcare providers to accept rates that are below competitive levels.”[149] As a result, Anthem and Cigna’s argument of “efficiency” was a thinly veiled attempt to further monopsonic practices that would result in a lack of competition in upstream markets.[150]
Similarly, in his concurrence in NCAA v. Alston, Justice Kavanaugh went further than the majority—who struck down the NCAA’s attempt to cap student-athlete academic benefits—by using a rule-of-reason analysis to find the NCAA’s role in collegiate sports a violation of Section 2 of the Sherman Act.[151] Justice Kavanaugh wrote,
The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student athlete labor at a below-market rate. And the NCAA recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.[152]
Again, Kavanaugh highlighted the effects of anticompetitive conduct on upstream producers—the NCAA’s labor—instead of addressing the impact on competition. He ultimately concluded, that “[p]rice-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”[153]
In the last year, an explosion of antitrust litigation has been brought forward by the DOJ, Federal Trade Commission, and by individual state attorneys generals.[154] The push to use antitrust litigation to spurn the threat of large tech conglomerates has been extremally popular in Congress as well.[155] Some members have gone as far as establishing a “Freedom From Big Tech Caucus.”[156] This renewed vigor in antitrust litigation spurns novel perspectives of how legislatures and the DOJ can combat modern anticompetitive conduct.[157]
In late 2021, the DOJ sued to block publishing giant Penguin Random House’s proposed acquisition of rival publisher Simon & Schuster.[158] This proposed merger draws many similarities with the Anthem and Cigna merger. Random House is the world’s largest publisher and Simon & Schuster is the fourth largest publisher in the United States and together they would control “close to half the market for acquiring publishing rights to anticipated top-selling books.”[159]
However, unlike the D.C. Circuit Court in Anthem, which was predominantly concerned with the consequences of the anticompetitive effects on consumers stemming from the purposed merger, the DOJ specifically focused on the harm that the merger would have on the upstream producers—the authors.[160] The chief concern for the DOJ in Penguin Random House’s action was a consolidation of market power on the buyer side, resulting in the creation of monopsony power.[161]
Buyer power is the “ability of one or more buyers, based on their economic importance on the market in question, to obtain favorable purchasing terms from their suppliers.”[162]
In the current music industry, the channels of music consumption have become more concentrated and streaming-centric with fewer and fewer ways in which artists can efficiently and effectively sell their music.[163] In the last decade, the importance of physical products like vinyl record and CD sales— which were once considered the largest sources of revenue for artists—has shrunk to less than 10% of all recorded music revenue in 2020.[164]
The streaming services have used the changing tide in music consumption to supplant physical record sales, brick-and-mortar record stores, iTunes, and other sellers of music as the de-facto disseminator of recorded music.[165] Streaming services through both ad-supported and subscription models drive a staggering 84% of all music revenues, and that number will continue to climb.[166] Streaming services have established market power in the recorded music space.
Spotify, Amazon Music, and Apple Music have effectively established that the going rate for unlimited access to music is $9.99 a month.[167] Only ten years ago most consumers paid $0.99 per song.[168] Yet, somehow it is possible for streaming services to offer unlimited access to all music for just $9.99 a month. Just like for much of the music industry’s history, the labels, large production houses, lawyers, and managers still receive their cut, and the artists continue to make less.[169]
The ability of the streaming services to set the price for upstream producers’ labor is a classic exhibition of oligopsonists’ power.[170] Akin to the vegetable farmers in my prior example, artists essentially have no choice but to sell their work on a streaming platform for fractions of pennies to obtain any relevance or sustained success.[171] This creates an industry where a few buyers with substantial power can set arbitrary low prices to gain mass appeal and then capture profits by passing paltry sums to upstream labor.[172] Ultimately, just like in a monopoly, the result is the mispricing of products and labor that ultimately “reduce[s] efficiency . . . output, employment, and [overall] social welfare.”[173]
The result will be fewer artists willing to take chances, less music variety, a concentration of wealth among a few popular artists, fewer individuals willing to pursue music careers, and the loss of an entire generation of new talent. So, how does it change? A concerted effort by artists to bring an antitrust action against the streaming services and a push for a collective bargaining agreement would be a strong start.
The federal antitrust laws are comprised of several statutes in the United States, one of the most prominent being the Sherman Antitrust Act (“Sherman Act”).[174] The Sherman Act is short in construction and widely interpreted.[175] Section 1 prohibits agreements that unreasonably restrain trade (concerted action), while Section 2 guards against the unlawful acquisition or maintenance of market power.[176] Both can be utilized to attack the anticompetitive conduct of music streaming services.
Section 1 of the Sherman Act states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”[177] This section has been used by courts to protect against a wide array of horizontal and vertical anticompetitive practices.[178]
Today most restraints of trade are evaluated for reasonableness under a “rule of reason” standard.[179] Certain restraints, however, are considered so pernicious that they are deemed per se illegal, irrespective of any claimed or purported efficiencies.[180] The use of the per se analysis has narrowed by courts since its inception, but is still applied to collusive price-fixing, market allocation, and bid-rigging.[181] There can be no defense of “reasonableness” to a per se violation of Section 1 and only per se violations are typically prosecuted criminally.[182]
On the other hand, a Rule of reason analysis is implemented when conduct is less definitively violative.[183] When conducting a rule of reason analysis, courts make a fact-specific inquiry into whether certain conduct is an “unreasonable” restraint of trade.[184] To determine whether the actions of businesses are a violation of Section 1 using the rule of reason analysis there must be (1) an agreement, either express or implied; (2) between two or more persons; (3) that restrains trade by producing anticompetitive effects outweighing any procompetitive effects stemming from the agreement; and (4) it affects interstate or foreign commerce.[185] Section 1 applies equally to collusive agreements to fix prices paid to sellers as it does to prices for goods sold to consumers.[186] In Mandeville Island Farms, Inc v. Am. Crystal Sugar Co. the United Sates Supreme Court held that “[it] is clear that the agreement is the sort of combination condemned by the Act, even though the price-fixing was by purchasers, and the persons specially injured under the treble damage claim are sellers, not customers or consumers.”[187]
At first glance, it might appear there could be some agreement to keep streaming prices arbitrarily set at $9.99 between Apple Music, Spotify, and Amazon Music—the three largest music streaming services. This type of pricing regime, where pricing remains uniform and may even raise at similar intervals, is considered lock-step pricing.[188] However, lock-step pricing by competitors, by itself, is insufficient to infer an illicit agreement.[189] Moreover, since the United States Supreme Court heightened pleading requirements in Twombly,[190] a plaintiff must allege more than parallel conduct, such as lockstep pricing, to avoid a 12(b)(6) motion to dismiss.[191] With no evidence of collusion, a plaintiff could not get to discovery, whereby it may hope to gain some insight into whether such an agreement existed.
Next, a plaintiff may aver that the streaming services’ tacit coordination in fixing prices at $9.99 is sufficient to bring a Section 1 claim. Tacit coordination is where there is an understanding between competitors regarding pricing but no express affirmations or overt action as to any agreement.[192] However, even though here may be some conscious parallel conduct between the streaming services, there is not enough to trigger liability under the Sherman Act. Absent direct evidence of collusion, a plaintiff must show both “(1) parallel conduct by the oligopolists; and (2) additional ‘plus factors’” evincing collusion to survive a motion to dismiss at the pleadings stage.[193] “Plus factors” that may be considered by a court are: a “1) motive to form an agreement or conspiracy; 2) actions against self-interest; and 3) traditional evidence suggesting a conspiracy or agreement” between the parties.[194] Traditionally, “Courts place more emphasis on the third factor for complaints against concentrated oligopolies and look for any other evidence that would suggest a conspiracy beyond parallel conduct.”[195] The introduction of “plus factors” could lead the court to the conclusion that there was unlawful coordination. [196] Nevertheless, a lock-step pricing regime can be consistent with either a lawful oligopoly engaged in independent pricing or the activity of an illegal cartel. Thus, the mere fact that Amazon Music, Apple Music, Spotify, and others set their pricing at $9.99 will likely not be sufficient to support a Section 1 claim.
Should such evidence develop—either direct evidence of an agreement between the competitors or sufficient “plus factors” to garner the pricing schemes as more sinister than mere lock-step pricing—the actions of the streaming platforms could constitute a per se violation under Section 1.
Section 2 of the Sherman Antitrust Act may also provide a means to attack the anticompetitive conduct of music streaming services. Section 2 provides penalties for “[e]very person who shall monopolize or attempt to monopolize or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.”[197]
Section 2 is not intended to be a prohibition on monopoly power itself but meant to address anticompetitive conduct in the maintaining or obtaining monopoly power.[198] To determine whether a monopoly is a violation of the Section 2, the entity must: (1) have monopoly power and (2) the willful acquisition or maintenance of that power is not a “consequence of a superior product, business acumen, or historic accident.”[199]
One issue with proposing a Section 2 violation by streaming services is whether Section 2 applies to just monopolies or whether it can apply to oligopolies.[200] Donald F. Turner, who has widely been considered one of the most influential antitrust scholars of the twentieth century, was a proponent of a more expanded understanding of Section 2.[201] He contended that oligopolists have often shared monopoly power in a relative market and, as a result of their combined power, engaged in the very same restrictive and exclusive conduct that is deemed per se illegal for monopolies under Section 2.[202] By defining oligopolists as a shared monopoly in a market, we could solve many of the issues that have seemed to allude Section 2 censure.
The Supreme Court has deemed monopolies and monopsonies to be regarded similarly under antitrust laws.[203] By the same analysis, it can be inferred that, like oligopolies, oligopsonies should also be included in Turner’s shared monopoly theory. The oligopsony created by streaming services in the music industry could theoretically be vulnerable to a Section 2 monopolization claim if they together satisfy the elements of the test.
First, a plaintiff must establish that services possess monopoly power in the relevant market. Typically, the hardest element for a plaintiff to discern is the relevant market is in which the defendant (whether a monopoly, oligopoly, monopsony, or oligopsony) operates. The music streaming industry affects the entire United States music industry and there is extensive data collected by the RIAA regarding each individual streaming service and their overall market share.[204] Moreover, one could make the argument that the power of Spotify and other large streaming services in the recording music market would equate to monopoly power when combined. Under the analytical framework developed by Donald F. Turner, streaming services are acting as a shared monopsony, with the top streaming services account for 84% of all recorded music revenues.[205]
However, the true exercise of the streaming services’ joint monopsony power is not their high market share but their ability to set prices in the music industry.[206] Just like a traditional monopolist can raise prices in an open market, a monopsonist can express their monopsony power by lowering their prices below market price. As a result of their joint monopsony, the streaming services have utilized this power to compensate artists less and offer a more attractively priced product to consumers.[207]
Second, the conduct of the monopsonist must be exclusionary or “predatory,” and maintaining the monopsony power may not be a “consequence of a superior product, business acumen, or historic accident.”[208] The streaming services could be construed as exclusionary in nature. They have weaponized their cheaper pricing model to quash smaller, competing streaming services like Tidal, that have committed to paying artists higher royalties.[209] However, even smaller services such as Tidal are engaged in questionable artist compensation practices.[210] In any event, an excluded rival would arguably have a stronger claim than a seller with comparably less bargaining power, as is the case with Tidal. The action of depressing buy-side prices, in itself, is not an act of exclusion and thus, on its face, would not trigger a Section 2 violation.
The success of Spotify has largely been due to their superior product, the unlimited streaming model. However, the model has become easy to replicate as evidenced by the emergence of other major players like Apple and Amazon who offer nearly identical services. One large reason that the big streaming services continue to grow is the result of their ability to compensate artist less to offer a cheaper product to consumers. In sum, the streaming services would be justifying their joint monopsony power as a being the result of their ability to dominate the digital streaming market and pay artists less. This leads to the absurd scenario where the justification of streaming services’ superior business acumen is the direct result of their anticompetitive conduct.
Though the conduct of music streaming services can be attacked under the Sherman Antitrust Act, it is still difficult to fit it within its parameters. Without a more modern, expansive interpretation of these antitrust law, modern anticompetitive practices will go unreproached. Currently, sell-side plaintiffs are ill-equipped and must tailor their square-pegged claims to the round holes of our current framework. As tech giants become some of the most profitable corporations in the history of the world, antitrust plaintiffs are still relying on law that was passed in the late nineteenth century.[211] Meanwhile, streaming services have become the medium in which almost all music is consumed, giving the few entities unprecedented power to shape the entire industry. Yet, the laws meant to safeguard vulnerable consumers and labor against the anticompetitive behavior of such powerful conglomerates continues to lag.[212]
Without concrete evidence of collusion that could trigger a Section 1 violation and with a restricted understanding of consolidated market power under Section 2, the unreasonable and harmful impact of streaming entities’ oligopsony power will likely go unaddressed under the current understanding of antitrust law. The impact of this power will continue to be felt by both artists around the country and those right next-door.[213] Today, the wielder of pricing power in an already predatory industry may be different, but the victims—the musicians—remain the same.
Furthermore, the music industry is just one of the many industries in which monopsonists and oligopsonists threaten upstream producers. An argument can be made that these same issues are occurring in e-commerce with Amazon and Walmart; movie and television streaming with Netflix, Hulu, and Amazon; online advertisement with Google and Meta; and in the many other subscription-based business models that are now so prevalent in American consumer culture.[214] In all these industries, like in the music industry, the danger lies in having one medium, between consumers and an entire industrial ecosystem, that has the power to play arbitrator in determining the pricing for products and the payout for the labor they can so easily exploit.[215] It was the original aim of antitrust law to avoid such a concentration of market power.[216]
The actions of big streaming services are anticompetitive and result in oligopsony power that unfairly fixes prices below market value, causing substantial economic harm to their upstream producers. As Justice Kavanaugh has stated: “Price-fixing labor is price-fixing labor.”[217] Though we may need to utilize an expanded understanding of antitrust litigation to tackle the complexities of oligopsonists’ practices, the goal remains the same as it was when the Sherman Act was first introduced: a free market where everyone, no matter how small, can compete.[218]
Do with How Many Times People Listen to Their Songs, Business Insider (Oct. 19, 2018), https://www.businessinsider.com/how-do-musicians-make-money-2018-10 [https://perma.cc/SP4X-MBGL] (“Many artists think that they will make more money when signed to a label, and I have to educate them that this is not necessarily the case and explain to them that they have to pay back all the costs the label expends on their behalf.”). ↑
12 Innovation Pol’y & Econ. 91 (2012) (“The decade since Napster has seen a dramatic reduction in revenue to the recorded music industry. Between 1975 and 1999 the value of U.S. shipments of recorded music rose steadily from $5.8 to $12.8 billion in constant 2000 dollars. Between 1999 and 2008, annual U.S. revenue from physical recorded music products has fallen from $12.8 billion back to $5.5 billion.”) (footnotes omitted). ↑
Welfare, in 12 Innovation Pol’y and Econ. 91, 91, 100 (Josh Lerner & Scott Stern eds., 2012) (concluding that in the period after Napster, producers had reasonable difficulty in generating revenue for recorded music). ↑
Service, Reuters (Oct. 27, 2011, 4:53 AM), https://www.reuters.com/article/us-limewire-music-ruling/court-shuts-down-limewire-music-sharing-service-idINTRE69P4QK20101027 [https://perma.cc/YF5A-6FFJ]. ↑
stream from Spotify); see also Thijs Nijenhuis, This Is What Music Streaming Services Pay Artists, Medium (Nov. 29, 2021), https://medium.com/swlh/this-is-what-music-streaming-services-pay-artists-cd4ea3a3f734 [https://perma.cc/W9FG-M72N]; Dredge, supra note 74; What Music Streaming Services Pay Per Stream (and Why It Actually Doesn’t Matter), Soundcharts Blog (June 26, 2019) [hereinafter What Music Streaming Services Pay], https://soundcharts.com/blog/music-streaming-rates-payouts [https://perma.cc/6XNS-P2SV]. ↑
today’s decision, the NCAA’s remaining compensation rules should receive ordinary ‘rule of reason’ scrutiny under the antitrust laws.”). ↑