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Re: BVerfG in re Napster



Hier ein Artikel vom März 2001.


*Face value*

*The man who would be cool*
Mar 8th 2001
From The Economist print edition


*In wooing Napster, Thomas Middelhoff, the boss of Europe's biggest media group, hopes to make money--but money isn't everything*



*Get article background* <http://www.economist.com/background/displayBackground.cfm?story_id=529181>

HE IS, he says, an "American who just happens to have a German passport." Even more than wanting to be seen as American in his approach to business, perhaps what Thomas Middelhoff, the boss of Bertelsmann, really yearns for is to be considered cool.

It is difficult to think of a better explanation for Mr Middelhoff's extraordinary decision last November to put money into Napster, the pariah of the recording industry. Although Bertelsmann, through its music subsidiary, BMG, in common with the four other big music companies, is still suing Napster for massive copyright abuse, Mr Middelhoff's conciliatory approach towards the online file-swapping pirate struck traditional record executives as a mixture of grandstanding and sell-out.

The sight of Mr Middelhoff at a press conference playfully patting Shawn Fanning, Napster's youthful founder, on the head, sharing the lad's bowl of "gummy bears" and asking for Napster T-shirts to give to his five children, was too much for some: BMG's two top managers quit a few days later. Vivendi's Jean-Marie Messier, an old friend of the Middelhoff family and recent acquirer of Universal, one of the Big Five music firms, could only shake his head in disbelief.

On March 6th, a federal judge gave Napster three days to filter out the copyrighted material of the big record labels once the firms issue a list of the tracks they want removed. But Mr Middelhoff appears unconcerned. Although the court's timetable is tough, he thinks the $60m his company has lent Napster should make it possible for Napster to comply ahead of launching a legal, subscription-based service in July. He thinks that the rest of the industry may also be coming round to his way of thinking: that working with a reformed Napster just might be smarter than shutting it down. Even Mr Messier said this week that he would consider licensing Universal's catalogue to a Napster that charged a subscription and passed money back to rights-holders.

But when Mr Middelhoff talks of Napster as being potentially the next America Online (a $50m investment in AOL made for Bertelsmann by Mr Middelhoff in 1994 was worth over $10 billion last year), it is time to pause. Mr Middelhoff sensibly argues that treating Napster's 60m-odd users as criminals is crazy. It should be possible, he says, to convert many of them into a legitimate, and profitable, fee-paying music community, a little like the book clubs that fuelled Bertelsmann's growth decades ago. If that happens, he can convert the loan to Napster into an equity stake, make another fortune for Bertelsmann and save the recording industry from its own short-sightedness.



But some big obstacles lie in the way. Although many Napsterphiles say in surveys that they are prepared to pay for their pleasure, there is a distinct possibility that the vast majority will simply switch to still-free clones, such as Aimster <http://www.aimster.com>, that have made themselves much harder to shut down than Napster. Even if Napster does succeed in producing software that meets the record companies' requirements while retaining the pioneering "peer-to-peer" technology that lets users share music files on each other's PCs, the big labels may still be reluctant to enrich the entity that has brought them so much grief.

Mr Middelhoff is shrewd enough to know this. But by siding with Napster's users in their demand for an easy-to-use and comprehensive online jukebox, he has been able to cast himself as a visionary, determined to shake up hidebound vested interests. In other words, someone who really "gets it". Someone cool.

Although he claims not to be interested in public relations, he also says that he wants Bertelsmann to be the most admired media company in the world. Certainly, the pace of change at Bertelsmann since he was elevated to the top job in late 1998 by the firm's patriarch, 79-year-old Reinhard Mohn, has been impressive. The acquisition of Random House by Mr Middelhoff, while still heir apparent, made Bertelsmann the biggest book publisher in the world. And if he can persuade competition authorities on both sides of the Atlantic to allow BMG to merge with Britain's EMI, Bertelsmann could soon also be number one in music as well. That is, however, quite a big if, given the ongoing investigation by the European Commission into overcharging for CDs.


*The patriarch says yes*

Mr Middelhoff has been just as busy shaking up privately owned Bertelsmann's ownership structure. Last month, he took a big step towards partially floating the firm by means of a share swap with Groupe Bruxelles Lambert, which left Bertelsmann with a 67% stake in RTL, Europe's biggest broadcaster. To the surprise of some, Mr Mohn, who has always prized the independence that has come with the company's close-knit shareholding structure, gave the deal his blessing. That was a big victory for Mr Middelhoff, who has become frustrated by the lack of an acquisition currency other than Bertelsmann's (plentiful) cash. Deals of the kind AOL did with Time Warner are not currently an option for Mr Middelhoff. For an honorary American, that rankles.

For the time being, Mr Middelhoff is pursuing the Americanisation--or "internationalisation", as he prefers to call it--of Bertelsmann in other, largely symbolic, ways. Increasingly, he spends time in the firm's office in Times Square rather than at its headquarters in the sleepy town of Gütersloh in northern Germany. Bertelsmen speculate that head office might even move to New York before long. Since 1999, English has been the firm's official language.

Mr Middelhoff also attaches great importance to the less formal dress code he has instigated. After a recent board meeting, not one of the departing executives could be seen wearing a tie. Mr Middelhoff himself is rarely photographed wearing a tie these days. It's just not cool.



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