Big Data Comes to Hollywood: The Brewing Antitrust Battle of the Streaming Era

U.S. regulators are being urged to look beyond Google and Facebook to review how Netflix, Amazon Prime Video and others are leveraging consumer habits as a competitive weapon in the digital entertainment war.

Movie box office. TV ratings. Say what you will about the reliability of entertainment consumption metrics, but for decades, what people watched was hardly hush-hush. Then subscription video streamers came along. Now, massive data is collected about viewing habits but is disclosed only at the discretion of the companies sucking it up. Netflix says it will become more transparent in 2020. But will it? And who knows if the numbers it releases are inaccurate or misleading? How much should the rest of Hollywood care about transparency?

Well, consider that less than two years ago, Time Warner's then-CEO Jeff Bewkes took the witness stand during a trial where the U.S. government attempted to block his company's merger with AT&T. Bewkes pointed to Amazon, Netflix, YouTube and Facebook before explaining that these companies "know more about our consumers than we do." The merger was justified, he explained, because digital giants possessed something that one of Hollywood's biggest media companies sorely needed — data. "The more you know about viewers, the more it informs your programming," he said. "It helps you understand how to optimize."

Hollywood is catching up. Disney has launched its data-sucking streaming service Disney+ while others including AT&T's HBO Max will be running soon enough. With a 21st century operation, though, comes a 21st century problem: the potential for regulation. Government intervention could drop a bomb on the so-called streaming wars.

Only in the past few years have academics begun discussing whether Big Data presents antitrust issues, and if so, what to do about it. Spurred by frustration at the might of companies like Google and Facebook, lawmakers and regulators on both sides of the political aisle have in recent months openly endorsed the scrutinizing of companies that are leveraging their inside knowledge about consumer habits to the disadvantage of third parties.

On Nov. 8, Department of Justice antitrust chief Makan Delrahim sounded his own alarm in a speech at Harvard. Delrahim said that the aggregation of data can create avenues for abuse — especially for companies in the business of predicting human behavior (for advertising, yes, but perhaps also what entertainment programming you might want to see if you just watched The Irishman). He also responded to those who see such concerns as overstated because data collection has been happening for decades. (His example was grocery stores collecting information about consumer purchasing patterns through loyalty cards. Nielsen ratings would have worked just as well.) Something has changed, Delrahim warned.

"Antitrust enforcers must examine carefully whether greater competitive harms are threatened given today's market realities," he said. "For example, enforcers might consider whether the scale of the data collected has increased by several magnitudes; the type of data collected; and what it means when companies collect usage data, which cannot be easily replicated, in addition to user data. Most notably, enforcers must confront the reality that data insights in the digital economy are combined across the ecosystem of the internet sometimes in ways that transcend product improvement and impact consumer choice altogether."

It's happening slowly, but antitrust regulators like Delrahim are now being urged to look beyond Google and Facebook and review how data is being leveraged as a competitive weapon in the digital entertainment space. And the expressed openness by conservative legal thinkers (including Attorney General William Barr in a Dec. 10 speech) to analyze the non-price effects of competition is a remarkable development that bears watching.

While some privacy advocates have expressed concern about allowing data collection to happen in the first place, there are others who seem frustrated by the inequality presented by data collection and the potential for marketplace exclusion. For example, during the recent DOJ review of the Paramount Consent Decrees, the decades-old rules governing the relationship between movie studios and theater chains, Michigan State University law professor Adam Candeub submitted a comment critical of Netflix to the antitrust office. "Netflix does everything in its power to prevent third parties from learning its viewing data," he wrote. "Netflix encrypts its data to prevent ISPs and web browsers from tracking the use, and it does not share any data with third parties, even the studios whose material it licenses and who naturally want information on [their] own show[s]. While Netflix has a right to its own data … Netflix goes a step too far by using its market power in the [online video] market to require that connected devices not use available data."

Similarly, in a July 31 letter from the Artist Rights Alliance to the DOJ and the House Judiciary Committee, the musicians' group laid out a number of concerns about specific tech companies, including Amazon. "The antitrust problems created by Amazon's role as both a distributor in its own right and a platform for other sellers and services are well understood," stated the letter. "The company's massive data stockpiles and ability to monitor its competitors from 'inside' their own transactions and operations threaten genuine competition in virtually every sector of the U.S. economy. Amazon's ongoing efforts to launch a streaming music service as part of its Prime family of products should be carefully scrutinized as part of your review. While more competition is always welcome and Amazon Music is a royalty-paying service, we are concerned about the dangers of predatory/sub-market pricing in a service that Amazon operates as a 'loss leader.' "

If regulators decide to crack down, a side squabble would erupt over how to remedy the competitive harms arising from data collection. Among the possibilities is that data aggregation could become a significant issue when companies seek approval for mergers. Reuters reported Dec. 10 that the DOJ is examining whether to block Google's proposed acquisition of Fitbit on the grounds that it would give Google too much data about American consumers. Regulators also could look to force data-sharing in some instances. A separate Reuters story reported that the Financial Stability Board, an international body that monitors the global financial system, would soon recommend that big tech firms be required to promote sharing of data.

Now imagine if the DOJ ever dared to stop two streaming video companies from merging on grounds of having too much information about what Americans watched. Or picture a scenario in which Netflix and Disney+ were forced to share audited consumption data with the creative talents that produce and star in their shows.

Some observers, noting a lack of legal precedent and any empirical evidence about the competitive harms from data hoarding, are urging regulators to be cautious. A recent law review article by University of Florida professor D. Daniel Sokol addressed the debate over whether antitrust law has a role to play, with the conclusion that "antitrust intervention over market forces threatens consumer welfare, especially in fast-moving markets, and proposed remedies, such as limiting the collection and use of Big Data or forcing large firms to share with rivals, are likely to harm competition and innovation, and in fact may raise privacy concerns."

Truth be told, there's no indication yet that regulators are prepared to do anything more than conduct a review of data collection. Time will tell whether the talk about getting tough is really just frustration at not being able to do more to punish tech companies for other perceived sins (i.e., an indifference to privacy, ideological biases or sheer chutzpah).

But as Hollywood launches new digital platforms amid an appetite to police data collection, comments like those from Candeub and the Artist Rights Alliance may best be viewed as demonstrating the types of complaints that could become more commonplace in the years ahead for the streaming economy. As such, the industry is advised to think hard about the answer to these two questions: When it comes to measuring how individuals are consuming entertainment, would the data collection be less likely to occur if such data wasn't a secret and could be used by business partners and corporate rivals? If transparency presents a problem, why is that?

This story first appeared in the Jan. 3 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.