Nov 29, 2023
On November 16, The Capitol Forum held a conference call with Kevin Erickson, director of Future of Music Coalition, to discuss the DOJ and State AGs’ monopolization investigations into Live Nation and how anticompetitive conduct in the industry hurts musicians and fans. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good morning, everyone. And welcome to our conference call on Live Nation Entertainment and the DOJ’s Monopolization Investigation. I’m Teddy Downie, Executive Editor here at The Capitol Forum. And I’m so pleased to be joined by Kevin Erickson, who is the Director of the Future of Music Coalition. We’re just going to be talking about what the regulators, enforcers and policymakers can do to encourage competition in the live music marketplace. And Kevin, thanks so much for doing this.
KEVIN ERICKSON: I’m so happy to be here.
TEDDY DOWNEY: And before we get underway, actually one quick thing. If you have a question, just type it into the questions pane of the control panel or email them to editorial@thecapitolforum.com and we’ll get to them later in the interview.
So, Kevin, I want to try to tackle this kind of a little bit from the lens of kind of how we’ve been writing about it. And sort of the ecosystem that we’re seeing—and I think this is kind of consistent sort of as the investigation goes on—is the way that Live Nation exerts power over the ecosystem is they sort of surveil the whole ecosystem. They use that data to win bids for events and tours, over bidding typically, bidding higher than what an independent player can economically bid, withstand. And Live Nation loses money on those concerts and then makes it up by generating fees through Ticketmaster. And I sort of wanted to go through, first. is that a fair description of sort of the ecosystem, to your understanding? Am I missing anything? Or is that kind of how it works? I mean, that’s kind of the consensus that we’re picking up, but I wanted to run that by you first.
KEVIN ERICKSON: Sure. Well, I would say first that like Live Nation, like a lot of dominant platform companies—and I think in some ways it’s very helpful to think of Live Nation as a platform company—operates in multiple product categories or multiple markets simultaneously. And so, when you think about what its source of platform power is and what specific harms that follow from that, it’s rarely just one.
You know, I found that it was actually rereading Lina Khan’s paper “Sources of Tech Platform Power” that sort of unlocked for me a broader understanding of how Live Nation and Ticketmaster sort of have been reshaping the industry, not just in the shows that they’re running and the shows that they’re ticketing, but in the ways that they’re like they’re shifting the ground on which competition happens.
So, it’s important to look at the whole broad ways that those power dynamics are playing out and consider all of them. That said, I would say, and it’s absolutely crucial to the bigger dynamic to understand that, a key source of Live Nation’s power over the industry and to reshape the industry and to control what kinds of contractual relationship end up happening is this cross subsidization of the live event market by the more lucrative ticketing market. And if you look directly at their reports to investors, some of the time you can see this. The live music business is generally a high volume, low margin business. And it’s the fact that the companies are operating simultaneously in these multiple product categories, they’re able to make a whole bunch of money on the ticketing stuff. So, they don’t necessarily have to profit off of their buy promotion business, at least not for every show.
And so, yes, one of the ways that plays out is that they’re able to offer bids to artists and performers or promoters or for particular tours that are above what an independent venue that doesn’t have the benefit of that cross subsidization could offer for the same tour. And, in fact, the independent venues in the space are doubly at a disadvantage in that if they are working with Ticketmaster as their ticketing service for the independent venue, they’re actually helping subsidize the above market bids at Live Nation venues with every ticket that they sell. And then if they’re not working with Ticketmaster, then they lose out on Live Nation promoted shows much of the time.
TEDDY DOWNEY: I want to stay on this for a second because obviously it sort of depends on how much on a particular event that Live Nation is really involved. But one of the complaints that we’ve heard from independent promoters is no matter what, no matter how they try to avoid Live Nation, Live Nation really has an incredible information advantage. They know, through Ticketmaster, how quickly tickets sell, whether a show is sold out across the country really. And so, when you’re talking about an individual venue, they have much better information about your business than you do in many sets of circumstances.
What’s your understanding of that kind of complaint? Have you heard that? And just the degree to fear in the market about the level of surveillance and data that Live Nation acquires. Because we hear a lot about data complaints about like Google and Amazon and things like that. But I haven’t heard surveillance and data that much when it comes to Live Nation. I’m curious if that’s something that you hear on your end.
KEVIN ERICKSON: I mean, it’s certainly a concern. Again, because the live music industry is high volume but low margin, trying to estimate attendance is how you’re able to make decisions about staffing. It’s how you’re able to make decisions about pricing. And smaller independent venues are often just looking back on how previous shows are performed there, if they have access to a limited data set. But Live Nation, with this huge data apparatus, that I think could be rightly called surveillance, because they’ve got their app. They’ve got data about the tickets that they’re selling, to whatever extent there are supposed to be limitations on the way that that data is used. And then also a huge competitive advantage that comes from the amount of user data and the direct access to ticket buyers that they have. That is data that not only do smaller and independent players not have access to, but it takes a level of scale and technological sophistication for that data to even really be actionable. So, if you’re a smaller independent venue trying to—like you probably couldn’t even use that data in as meaningful a way without a bigger sort of number crunching apparatus, people whose job it is to look at that big data and help make booking and staffing and spending decisions based on that.
And so, as a result, that’s one of the ways that when Live Nation wants to either go for additional acquisitions or enter in operational agreements, one of the ways that they can sell themselves as an operational partner where they don’t buy the venue, but they take over the operations. They can say, well, we’ve got access to all this national level data and we’re going to be able to, if you let us run your amphitheater, we’re going to be able to maximize revenue because we’ve got this window into everything else. And I think the comparisons to Amazon, for example, are totally apt. And one way we look at the way that Amazon has all this access to information about what’s selling on its platform and can make its decisions about what kinds of products it wants to start making their own—not knock off, but they can create Amazon branded, you know, serving both as the platform and as a seller themselves—that gives them a window that nobody else in the space really has.
TEDDY DOWNEY: And I want to stay on this Amazon analogy for a quick second because I think it can be helpful. Because the people who allege that they’re harmed here, you’ve got the competitors and the venue owners and promoters. And you’ve got customers who complain, obviously, about the manipulation and the fees. And with Amazon, you have this. But you also have the artists who are sort of getting paid part of the—they’re sort of benefiting in some respects from the monopoly situation because they’re getting these over bids the way they’re kind of—I don’t want to call them embed with Live Nation, but they’re benefiting from the Live Nation ecosystem that Live Nation creates. Is that kind of how you think about it? Yeah, I want to get your reaction to that.
KEVIN ERICKSON: I would say that they’re—so, there’s a diversity of opinion in the artist community, right? So not every artist group has the exact same analysis. I would say that nearly every organization representing touring musicians in federal policy is on the same page about a basic vision for regulating the ticket marketplace legislatively, and that would include like SAG-AFTRA, Grammys, Folk Alliance. And then there’s a subset of artist organizations that agree with that whole platform and then have also gone a step further in calling for the breakup of Live Nation Ticketmaster. And that includes the future of music. That includes Artists Rights Alliance, Music Workers Alliance, United Musicians and Allied Workers, American Association of Independent Music, which is the trade organization that represents independent labels.
And one reason that that subset of organizations has gone that extra step, despite the fact that those top line guarantees might be higher for certain artists in the short term, is that we understand that there are long term harms associated with this and we might not be able to say no, and our booking agents might not be able to say no, if somebody offers us a better bid because there are immediate needs that have to be covered. And touring margins are really small, and especially in a post-pandemic moment where everybody is desperate to get back on the road, it would be unreasonable to expect people to be able to say no to a higher guarantee.
We also understand that (1) those extra high guarantees are not exactly spread evenly across the ecosystem. What happens is that they tend to outbid on the highest grossing shows, which tend to be historically the kinds of shows that do really well at an independent venue and that subsidizes the independent venue’s ability to take more risks in their booking the rest of time.
And so, when the independent venues lose out on the ability to do those higher grossing shows, that impacts everybody in the ecosystem. Because suddenly the independent venue has to penny pinch more at the less higher grossing or more risk-taking kinds of events. And then, even for the folks that are getting those higher guarantees, the rest of the contractual terms that Live Nation offers might not be as good. There may be additional things deducted at the end of the night. There are some structural incentives in place that mean that booking agents in particular are incentivized to want to take a higher guarantee any time it’s offered. It doesn’t actually work out to the benefit of the artist to have those higher guarantees at the cost of all of these ecosystem wide harms.
TEDDY DOWNEY: And you mentioned that some of it is about control. Some of it is about the type of music that they’re able to do. Obviously, if you can’t take more risk, you’re going to take less long shot, new performers, things like that. And I’m curious to ask you—one of the other complaints is sometimes the artists want to do shows at particular venues that aren’t Live Nation owned or Live Nation controlled. Is that something that they complain about, that they don’t have the types of exclusive relations?. They’re not really necessarily exclusivity, but like kind of almost like bonus payments. The payments are substantially higher. The guarantees are higher if you do all Live Nation shows versus if you do one or more non-Live Nation shows. That seems like a bit of a control issue. Is that something that comes up with the artist as well?
KEVIN ERICKSON: So, I can’t say that I’ve seen evidence of that directly. It’s something that I’ve heard whispers of, and I think it would be exactly the kind of thing that the Department of Justice should be interested in. I can say like generally there is restriction of the creative choices that are available to artists on a number of different fronts, like the ability to choose a venue based not on its ownership, but on the basis of other factors. The experience of the concert for the artist and the experience of the venue for the fans rather than on the basis of ownership, that’s ultimately what we want that to. That’s one of the ways that we would characterize a healthy ecosystem is by maximizing choice and having venues competing to be good partners to musicians and serve fans well.
I mean, this is just one of the things that happens typically when we see ownership consolidation happening without some countervailing force. It is true that independent venues historically take risks, have their ears to the ground. Because their booking is not being done by some guy who lives in another town just making decisions based on metrics. And so, like the loss of the ability to have somebody thinking about like a good creative opener who would be the right person to have a coherent, creative perspective presented. Those kinds of creative decisions get restricted too.
But you also look at other kinds of partnerships. There’s exclusionary practices that we’ve seen in the past. So, like the story of Songkick, for example, is still really interesting to me. It technically still exists, but there was a lawsuit where some kid at the time was running a sort of fan club service that did VIP meet and greets and things. And it’s a competitor to Live Nation’s own offerings in that area. And that is a fascinating lawsuit to dig back through because there were some allegations of espionage, corporate espionage, happening and stolen data. Ultimately, Live Nation did not want people working with Songkick. They wanted to continue to control that market themselves and steered people away from Songkick. Songkick sued. Ultimately, there was a settlement that happened, but that settlement happened too late. At that point, Songkick had already gone out of business and stopped providing this VIP meet and greet and fan club ticketing options. And as part of the settlement, Live Nation actually acquired the corpse of the company that it had killed. So, it acquired those assets as part of the settlement, which I found quite dark.
TEDDY DOWNEY: Yeah, that’s interesting. I want to spend more time on that. Because a lot of times in these Section 2 cases—and you saw this in the Amazon case—they’ll mention competitors that came up and were run out of business as evidence in the case. So that is particularly interesting for us to take another look at. What’s the sort of larger kind of impact of what Songkick was trying to do? They’re trying to make the experience better for fans. And is it fair to say they were trying to kind of bypass sort of all these manipulative fees and difficulties in the ticket buying process for the biggest fans? Or what was the goal of it? And why was that a threat to Live Nation?
KEVIN ERICKSON: Well, I think it was just simply that they had a competing product. And this continues to be the case that they have a particular way of running fan club operations. And while some of the practices around this may have changed, my understanding is that for a while there was one level of—they could set aside t ticket allocation for fan clubs that were operated by Live Nation. Or they could set aside a ticket allocation for fan clubs that were not operated by Live Nation. And the practice was that if you were going to work with a non‑Live Nation fan club operator for that component, that subset of the ticket inventory, you would be allocated a smaller allotment for fan club distribution to do as you wish than if you worked with Live Nation Operation. And that way you just have contractual access to greater amounts of the inventory to do as you see fit with as an artist than if you went a different direction. And I think it’s just purely about funneling people into the single line of business.
TEDDY DOWNEY: If Live Nation’s making all this money off on tickets, and you’re making it like a simpler, straightforward way for people to just get their tickets, allotment‑wise, fan club‑wise, that’s not a good thing for Live Nation.
KEVIN ERICKSON: Right. And we should draw a distinction here between like a fan club serving the super fan—you know, they charge more and then they get a bunch of bonuses—versus just the access to ticket. It can be a different kind of situation. Like one of the important lines to draw here is the distinction between—like ultimately, what we want is to have primary ticketing companies competing to be good partners to venues as well as to musicians and fans. And nobody feels like they get ripped off at the end of the night.
One of the hugest complications and one of the biggest challenges in getting to a place where we’re able to make some legislative interventions on these issues is that the secondary companies, the brokers and the secondary resell platforms, like StubHub, Vivid Seats, SeatGeek, come in and say, oh, we’re offering competition to Live Nation. And so, they have a whole policy agenda that they have been fighting hard for on a whole bunch of different fronts and taking advantage of the broad and justified frustration that everybody has about Ticketmaster to try to advance those policy goals.
But the secondary marketplace doesn’t compete with the primary marketplace in the sense of the healthy competition that we want to see, ultimately. Like Sandeep Vaheesan from Open Markets Institute had this great paper this year called “Morality of Monopolization Law and it draws the distinction between good competition versus bad competition. Like having firms that are competing to treat artists better, treat fans better, by operating more robust and functional and streamlined ticketing operations, that’s good competition. Having these secondary companies come in and assist the brokers in competing with fans, with actual ticket buyers who want to buy the tickets because they want to attend the show. Competing for that limited inventory so they can extract as much revenue as possible and divert it, hike prices up and then divert that revenue away from artists, away from venues, away from anybody who has anything to do with putting on the event and then ultimately charge fans more. That isn’t good competition and that’s not the kind of thing that we want to incentivize. So, I’m encouraged by the media reports that I’ve seen that seem to indicate the DOJ is focusing on artist contracts and venue contracts rather than these weird claims coming from the secondary part of the industry.
TEDDY DOWNEY: One thing Live Nation says a lot is we don’t set the price. We don’t set the fees. The venue sets the price. Sorry, the artist sets the price. The venue sets the fees. We only take a small portion of the fees. You mentioned how Live Nation exerts control over how all these contracts and negotiations go. What’s your response when they say we don’t set the price, we don’t set the fees? I mean, there’s a lot of different situations for Live Nation when they are owning the venue or controlling the venue, when they’re negotiating with the artists, representing the artists. So, what’s the reality of how much control Live Nation has over negotiating prices with artists and fees with the venues? Or is that even a right way to think about everything?
KEVIN ERICKSON: No, it’s a good way to think about it. I think it’s challenging because there’s diversity of practice. And a lot depends on the specifics of where an artist is in the course of his or her career. I think it is fair to say that in cases where Live Nation is acting as the promoter or in Live Nation owned venues, the face price of the ticket is set as part of a negotiation between the artist and Live Nation wearing its promoter hat.
In situations where Live Nation doesn’t own or operate the venue, then the face price is set in negotiation between the artist and whatever venue or promoter. The fees on top of that, Live Nation is both responsible for the fees at venues where Ticketmaster is the primary ticketing company. And I think it’s also fair to say that Live Nation has some clear responsibility for the shifts in the broader ecosystem that result in ticket fees being higher across the board.
What has happened is as—the thing that we talked about earlier, the issue of cross subsidization of the live music marketplace by the more profitable ticketing marketplace has become really widespread. So, the way that an independent venue might react to trying to keep up with Live Nation’s higher bids is by offering a higher bid themselves. And so, they might not take anything off of that out of the fixed price of the ticket. Or they might take much less out of the price of the ticket because they feel like they have to, to be able to keep up to get that competitive guarantee to the artist representative. They might take zero percent of the door and then hope they can make it up by adding fees on top of that. In almost no case do artists have any say in those fees at all. And even to the extent that venues do have a say in deciding how much they’re going to take in this case. But they are more and more feeling compelled to hike those fees up to keep up with Live Nation in the ways that it’s reshaped the marketplace.
And then another element is that, as part of the contracts that Ticketmaster and other competitors make with venues typically to operate as the exclusive primary ticketing service, there’s some kind of an advance. The ticketing company provides some bulk amount of money to the venue. And that can be an important source of financing for venues in terms of just like ongoing operating capital. And so, some of the time when you see these fees added onto a ticket, a portion of that ticket fee is going to paying off that advance. Or like that’s another factor that helps drive fees higher. So even if the percentage of the ticketing fee that goes directly to Live Nation may be relatively low, a few dollars per ticket, that additional venue fee on top of that might ultimately be going back to fulfill these other contract terms. Now, for venues where it’s a Live Nation owned venue, all those fees are going to the same place, obviously.
TEDDY DOWNEY: Right.
KEVIN ERICKSON: That’s one of the ways that also is how they’re able to do the guarantees that are higher than the competitors in making their bids to artist representatives.
TEDDY DOWNEY: We’ve got a number of questions here. So, I want to get to them really quickly. One question here. How does sponsorship play into Live Nation profitability? And why is that unique to their business?
KEVIN ERICKSON: Oh, boy. So, sponsorship happens in an array of different contexts. And because Live Nation operates in so many different product categories simultaneously, they have the ability to pursue different forms of sponsorship income. So, like they can do sponsorships like ads within venues themselves for venues that they own. They can do ads within their various digital channels and email and apps and things. Because they have the benefit of the national scale, they are able to do these centralized sponsorship sales operations with the benefits of those economies of scale. And obviously ,those are not passed onto the independent venues that Ticketmaster works with and don’t appear to be passed onto artists either. And then they’re able to extend those relationships across multiple product categories as well and do the integrations and things in a way that for a smaller, locally owned, independent, even a locally owned independent chain, to be able to pursue something like that as an additional form of revenue would take an investment of human power and infrastructure that—most of these places are just trying to keep the lights on, right?
TEDDY DOWNEY: Yeah. So, it’s kind of like they’re so kind of ubiquitous and they have so many different properties that you can kind of have sponsorship all the way across all of those. And I was also wondering, you know, we’ve previously looked into alcohol sponsorships and whether or not those are potentially improper kickbacks related to strict laws around alcohol sales. Because sometimes you’ll have these artists who represent a type of alcohol, right? Or they’re like, whatever. They’re sponsored by this particular type of alcohol. And then they negotiate in their deals that that type of alcohol is going to be served at the venues they play at. Have you ever heard anyone, regulatory people or enforcement people, asking those types of questions or looking into those type of issues? Like has that occurred?
KEVIN ERICKSON: That’s in an area that I’ve experienced directly. It’s totally an interesting one that it seems worthy of inquiry, but it’s not something that I’ve encountered.
TEDDY DOWNEY: So that’s two questions. We’ve got another one here. Let’s come back to this at the end because they’re both about break ups and we can get to that one when we’ve sort of vetted all the legal implications. We’ll follow the Google trial. They’re doing first on liability and then remedy. So, we’ll kind of do the same thing here.
So, I guess my last area, and then maybe we can talk about remedy, is one thing we’ve been interested in is we know there’s interest in the amphitheater market. There has been particular just because of how dominant or allegedly dominant Live Nation is in that space. They own a lot of amphitheaters or control a lot of amphitheaters. And one thing that we’ve found and we’re interested in is how Live Nation will work exclusivity agreements into their amphitheater. It’s like only Live Nation can do shows here when they manage the venue for a municipality, when they’re negotiating for those contracts. And I was wondering, do you hear complaints about that? That seems to me to be problematic that you’re going to kind of take over this public resource really, and use it for your own exclusive benefit? But we’ve certainly heard about, you know, we wrote about this Milwaukee where independent venues are fighting a new Live Nation venue. And we’re interested in this amphitheater market as well. Have you heard anything about complaints or looked into the amphitheater issue previously at all?
KEVIN ERICKSON: Well, when you’re dealing particularly with venues that have come into existence because some kind of public funding is involved, that they’re meant to be a public resource. And yet, they’re existing in a marketplace and competing in a marketplace where there are real dominant players. I can certainly understand why it would look tempting for a municipal operator of something like that to enter into a contractual relationship with. Live Nation for operations, with Ticketmaster for ticketing. And the challenge is they have a clear incentive to behave in exclusionary ways wherever they can, you know, in the absence of consequences.
And while I haven’t seen direct evidence of what you’re talking about there, it would be consistent with the concerns that we’ve heard, that even in the sort of consent decree environment, when a company is operating in so many—wearing so many different hats simultaneously and also with multiple hats that it’s wearing, you know, ticketing, promotion and tour promotion operations, artist management in particular, I think, plays into that there, as well as other kinds of sponsorship and alongside the venue operations.
Like, there’s clear incentive to engage in that kind of exclusionary conduct. And because it’s so common for these municipal processes to be made with suboptimal processes that don’t necessarily happen with a lot of public scrutiny, the opportunity for the kinds of safeguards that could guard against that exclusionary behavior and ensure that these public resources continue to really maximize public benefit and maximize service to the community by making booking decisions not on the basis of common corporate ownership. Those kinds of protections are hard to get in there. Which is why I think this will be continue to be a really important front in some of these fights moving forward, especially as independents are hearing about opportunities being offered to the largest players without independence, being able to even be offered the opportunity to bid, to compete. I expect that to continue to be an important fight. But it really speaks to the necessity of a comprehensive federal solution. And I guess that’s where a breakup comes in.
TEDDY DOWNEY: Perfect. This is a great transition. Well, actually, I have one last question. There’s been this development in Milwaukee. I’m sure you’ve seen it where there has been some local reporting about a potential FBI investigation into a couple of aldermen there. The reporting has been about potentially this municipal proceeding to allow a Live Nation joint venture with this thing called Frank Productions to build a new venue there. And the idea being that there’s some improper behavior by these aldermen to push ahead with this municipal decision making around this venue. Again, this is local reporting. It hasn’t been picked up broadly in the media. But I wanted to get your reaction to how big of a deal would that be if that continues to play out? If you don’t want to talk about it, that’s fine. But I wanted to get your reaction.
KEVIN ERICKSON: I mean, it certainly is salacious. If this reporting is accurate—and I understand that the source right now is what seems like a colorful local talk radio host. So, I can’t—I don’t think it would be appropriate for me to sort of—I couldn’t speak to anything about the veracity of those claims. It certainly would be outrageous, yeah. I also think that because there are these very extreme, colorful moments and in the live music marketplace, some really big personalities and like these big controversies that like these moments of what sounds like potentially extreme examples of corporate malfeasance, there can be a temptation to fixate there. And it’s absolutely appropriate to pay attention to these things.
In general, I don’t think most of the employees of Live Nation or Ticketmaster are sitting around thinking about what can we do to screw artists? What can we do to make things more difficult for consumers? What can we do to make things more difficult for independent venues? Rather, they’re working inside a large, lumbering bureaucracy which has structural incentives to follow the math and make decisions based on math that ultimately end up having these dire consequences for creative ecosystems.
So, like, even as we look at these fascinating stories, that’s ultimately the place to focus. The problem is not that this company is uniquely evil. But that it’s been a failure—it’s been a set of deliberate public policy choices and regulatory failures that have led us to this place.
TEDDY DOWNEY: Yeah, I think that’s really well said. And so, I think we now have a great transition to talking about breakup. We’ve talked about this problematic ecosystem, failed public policy authorities, failed law enforcement and regulation over the years to get to where we are with all of these kind of perverse incentives that are not good for customers, that are not good. You know, the customer feels manipulated and cheated and gouged. It’s like an emotional experience. You watch these videos of people frustrated when they’re buying tickets to go see their favorite artist, paying like two paychecks to go see a show. You know, just it’s kind of clearly there’s something broken there. And then the dire circumstances for these competing venues. A lot of these Milwaukee independent venues talk about it as an existential moment. If you let Live Nation in, we will be run out of business.
Clearly, there’s something broken there. You’ve got the musicians who, some of them, are getting paid more by this ecosystem and they don’t like it. I mean, something is really wrong here. And you see the artists talking about the ecosystem saying, we don’t like that our customers are paying all these high prices. And something is just not right. Something’s really broken here. And so, Live Nation says, DOJ investigators are not looking into anything except these kind of isolated allegations of anti‑competitive business practices. But if you’re going to solve this, if you’re DOJ, let’s say you make all these allegations and you went on the liability, what do you think is necessary to break up the company so that you do have a healthy ecosystem?
KEVIN ERICKSON: Right. So, I would say that there’s two tracks simultaneously. There’s the structural piece and then there’s the market regulation piece. The structural piece is about dealing with Live Nation specifically. I think we can say that the consent decree approach has failed. In particular, for artists it’s failed because it imposed a monitoring burden on the population of people, artists and their representatives and venues, who have the least amount of power in the ecosystem, often the least amount of information to be able to see what would even constitute a violation of the consent decree and the least amount of legal resources to feel like they could do anything about it.
So, I think this is a lesson about behavioral remedies in general, why they’ve been so inadequate. And that’s a separate conversation about how our agencies should deal with merger remedies moving forward, but I wanted to get that in there. But I think that simply unwinding the merger, breaking off Ticketmaster and letting it exist on its own, would not be enough to address the range of harms that we’ve seen across product marketplaces. And so, I think that there are better remedies and maybe more radical remedies. But I think if we talk about four different markets, the ticketing marketplace, the venue operations marketplace, the tour promotion marketplace and the artist management marketplaces, four different hats that this one company is engaging in, four different hats that this company is wearing. If each of those has its own independent entity, that would be a huge step to a healthier ecosystem.
And then I think that there’s additional remedies that could happen on top of that, additional restrictions to make sure that even as a separated company that Ticketmaster is not able to leverage its way back into the exclusionary arrangements that it has at times. Our friends at Economic Liberties, American Economic Liberties Project, have a report that’s going to be coming out shortly. And I think that it’s very much going to be worth looking at. They’ve got some very smart ideas about a road map, about what this potentially could look like.
But then I think that, in addition to this structural piece, there’s still going to be a market regulation piece to deal with the other parts of the problem. The extractive practices of secondary sellers, including Ticketmaster’s. Ticketmaster remains one of the largest secondary sellers. And so, there’s a whole shared agenda that the Fix The Tix Coalition has put together to deal with that component of the problem. Like to get us away from an environment where Ticketmaster on one side or the brokers and resale platforms on the other side are making the rules. If we address both of these things simultaneously, DOJ doing the breakup and legislators dealing with the market regulation piece, that’s the recipe to a healthier ecosystem.
TEDDY DOWNEY: And so, I think you’ve sort of answered this, but we have a question. What are the breakup implications for SeatGeek and Vivid Seats? I take it you would think it’s very different if you don’t have regulation. You have a breakup with no regulation. I guess you could have a breakup with some rules attached to it in a cassette. Are the implications for SeatGeek and Vivid Seats, what’s your answer there in terms of how this plays out?
KEVIN ERICKSON: Here’s how I’m going to answer that. Here’s my advice to the companies, unsolicited advice for the companies that have been focusing their business on the secondary marketplace. If a breakup happens and you have an incredible opportunity to move away from the secondary extractive marketplace, instead of being a company that extracts values away from music communities, be a company that invests in music communities and contributes value to music communities. SeatGeek already has a primary marketplace operation and think it’s pretty good. And in a post-breakup environment, they would have the ability to, ideally, make more competitive bids on arenas and amphitheaters and focus there. Focus on that healthy part of the ecosystem. Be a serious competitor to Ticketmaster and AXS and the other primary marketplace companies. That’s a place where the technological innovation could be put to good use without screwing customers in the process.
TEDDY DOWNEY: Yeah, I mean, it will be really interesting. I mean, if we get all the way to breakup – I mean, it will be years away from that. But it will be interesting to see how all the different opportunities open up, to your point, to get back into the primary market. And lastly, I had a question for you, which is we haven’t seen before really DOJ. you know, the FTC has become much more aggressive when it comes to Section 5 unfair methods of competition. We made the analogy to Amazon here related to sort of thinking about the alignment, a theoretical, hypothetical Live Nation case through the lens of what we just saw from the FTC on Amazon.
I should mention Amazon has another lawsuit. The FTC has another lawsuit on Amazon. Not just their monopolization, but also on their sort of consumer protection issues around Prime. But some of the more interesting—not more interesting. Some of the interesting elements of the Amazon case are Section 5 unfair methods of competition claims. DOJ doesn’t have that law. But states are investigating this industry, and states do have kind of Section 5‑ish FTC Act type laws. Do you think, particularly for something like maybe like the municipal exclusive exclusionary conduct type stuff? Do you think DOJ, to make up for not having Section 5 could work with the states and the states could bring that type of claim? Have you thought about that at all? Do the musicians think about, you know, kind of creative? You know, I know there are a lot of fights at state legislatures, but just given that the state AGs are involved here, do you think that’s an avenue that the musicians might explore?
KEVIN ERICKSON: Well, so I think it’s an avenue that they should explore. The challenge has been, you know, we’ve got the music community, despite having sort of clearly a lot of industry unity on what should happen in the ticketing marketplace. And as I said, a number of that have gone further in calling for a breakup. We have very limited resources, particularly for these state fights. And there’s an idea that was popularized by the disability justice movement, Nothing About Us Without Us. And the challenge has been, I think, that even well-meaning AGs and well-meaning folks in the consumer rights groups and public interest community have not done a very good job at being responsive to the music community. And at a time when we are simultaneously trying to deal with 12 other issues, while Live Nation on one side and the secondary companies on the other side have virtually unlimited policy resources to go and talk to the AGs.
You know, I think my thesis is that like how you approach Live Nation specifically and the live event marketplace generally is a test case for whether your approach to antimonopoly policy actually constitutes a move towards greater responsivity to workers and small businesses beyond a narrow consumer welfare approach. And so, I would welcome that. But it would require state AGs to be especially proactive in outreach to music communities and other impacted stakeholders in a way that we’ve seen a little bit of. And I can’t speak to conversations that are not public, but it needs to be an ongoing practice at every level of government.
TEDDY DOWNEY: I’ve got one last question, which is just kind of sort of like a momentum here. You know, there was a lot of momentum coming out of the whole Taylor Swift, Swifties, backlash against Ticketmaster. Do you feel like this is still an opportune moment? Do you still feel like the momentum is with the music community to fight this and have DOJ bring a case? Do you still feel that momentum in terms of policymakers, law enforcers, being behind the people who want to see reform here?
KEVIN ERICKSON: I mean, I think that the challenge has been—and this is like when the merger went through in 2010, the strange bedfellows coalition that came together to block that merger was sort of all over the place. There hadn’t been until relatively recently an advocacy apparatus that adequately gave voice to the concerns of independent venues and other important music stakeholders.
Like NIVA, the National Independent Talent Organization, for example, which is a very important stakeholder that now has a presence in public policy, whereas they didn’t in every earlier iteration of this debate. And I’m seeing growing interest and growing momentum among the broader arts and culture community, nonprofit arts and arts presenters, operas, symphony orchestras, theater presenters, are starting to educate their memberships and they have incredible networks out in the field that they can activate.
So, even if the Taylor Swift energy is dying down as the Eras tour is wrapping up, I think the conversation is not going to stop and really cannot stop. The way to bungle this would be for Congress to do the lowest hanging fruit thing, do a bad job of it, and then decide that they’re done with the issue for now. This is an issue where we can get some really clear, easy wins for everybody in the ecosystem. And the ability to do that, again, just requires making sure that the most impacted folks have a seat at the table.
TEDDY DOWNEY: Well, Kevin, thank you so much for doing this. Every time I talk to you, I learn so much about this industry. I learned so much about what would a healthy ecosystem look like? And it’s really interesting to talk through all of these issues from a legal policy and legislative standpoint. So, I can’t thank you enough for taking the time today.
KEVIN ERICKSON: So happy to do it. Thanks so much for the opportunity.
TEDDY DOWNEY: And thanks everyone for joining the call today. This concludes the call.
