“The concert ticket industry is broken - in fact, the concert industry itself is broken”. And all because both concerts and ticketing are “controlled by a monopolist” and that monopolist is Live Nation.
Those were the bold words of US Department Of Justice lawyer David Dahlquist on day one of the big Live Nation antitrust trial in New York yesterday. A trial the live giant’s lawyers and lobbyists tried very hard indeed to ensure would never happen.
According to the DoJ and attorneys general for 40 US states, Live Nation and its Ticketmaster subsidiary unlawfully exploit their market dominance in shows, venues and ticketing, to the detriment of artists, fans and the wider music community. Live Nation strongly denies all those allegations, of course, and it’s now for a jury to hear arguments from both sides and decide who is right.
From the off, Dahlquist and the other Dave - Live Nation’s legal rep David Marriott of Latham & Watkins LLP - began the battle of the stats. Because both Daves have stats to hand which, they claim, prove that they are right. Yes, both sides are represented by Dave, both of whom claim the stats back up their case. Which isn’t at all confusing.
According to DoJ Dave, aka Mr Dahlquist, Live Nation controls 86% of large concert ticketing in the US and 78% of the country’s amphitheater venues. Which we can all agree sounds like something we should be worried about.
But of ticketing at large, Ticketmaster has a 40% market share, and for venues 20%, Live Nation Dave - or Mr Marriott - countered. One of Live Nation’s key arguments is that the DoJ has sliced the live entertainment market up into artificial segments in order to make it look like the live giant is much more dominant than it really is.
It seems likely that this stat bickering will continue throughout the trial, though what juries really like is stories, and yesterday’s opening statements had two good stories to tell which illustrate the tangible negative impact of Live Nation’s monopoly. Or not. Depending on which Dave you believe.
Story one: once upon a time there was an arena venue in New York called the Barclays Center... and one day it decided to change its ticketing provider from Ticketmaster to SeatGeek. Except, the next day (well, about eighteen months later), it switched back to Ticketmaster.
So what the hell happened? I mean we know there was an angry phone call involving Live Nation CEO Michael Rapino. But did Live Nation actually use its dominance in arena-level touring to force the arena to return to its ticketing business? Or was SeatGeek just not up to the task for providing primary ticketing for New York’s big arena venue?
According to DoJ lawyer Dahlquist, while management at Barclays Center wanted to use SeatGeek for their ticketing, it became very clear that, “if they didn't use Ticketmaster”, Live Nation’s touring division “wouldn’t send them any concerts”. So, basically, when Barclays Center moved its ticketing to SeatGeek, “Live Nation punished them” and “they were forced to go back to Ticketmaster”.
Not so, said Marriott, representing Live Nation. Yes, Rapino did “lose his cool” during a heated phone call after the Barclays Center appointed a new CEO with an existing relationship with SeatGeek who decided to end the venue’s deal with Ticketmaster.
But the Live Nation chief never threatened to stop concerts being promoted by his company’s touring division from being staged at the New York arena. And the Barclays Center ultimately returned to Ticketmaster “not because of any threats, but because SeatGeek fell down on the job”.
Story two: once upon a time there was a singer called Taylor Swift who decided to sing some of her songs on an ‘Eras Tour’. She appointed Ticketmaster to sell her tickets. But on the day the tickets went on sale, everything crashed resulting in a lot of very angry Swift fans.
Oh dear. But here is the question: did it all go wrong because the Live Nation ticketing company got complacent, because it enjoys a virtual monopoly over concert ticketing, and as a result failed to build a decent IT infrastructure?
Or was the demand for Swift’s tickets, including from dubious bot-using ticket touts, at an unprecedented high, and there isn’t a ticketing platform in the world that could have coped in those circumstances?
Well, according to Dahlquist, the Swift debacle was simply “emblematic” of a company that has little “competitive incentive” to build a consumer-friendly ticketing product that is fit for purpose. “Their technology is held together by duct tape”, he claimed, because “they have prioritised growth over maintaining their systems”.
Not so, said Marriott. Yes, the Taylor Swift launch was a debacle and Ticketmaster never has denied that fact. But this was the “single largest on-sale ever”, and the cyberattacks by touts and other rogue parties created challenges that no other ticketing company could have dealt with any better.
The Barclays Center bust-up and Taylor Swift on-sale are likely to be referenced throughout the trial, with the DoJ keen to present these events as tangible proof of live music’s monopoly problem, while Live Nation will insist these are isolated incidents that have been misrepresented.
Ultimately, the case swings on whether there is enough evidence to show that Live Nation routinely ties its venue management, tour promotions and ticketing services together in a way that specifically violates US laws at a federal or state-level.
Though with a jury involved, the stats and stories will also likely be a key part of the narrative as the proceedings progress, and the two Daves present their respective arguments.