Dell Buyout: Microsoft’s Generosity

 

To perform painful surgery on its business model, Dell needs to take the company private. Seeing challenges in raising the needed $22B, Microsoft “generously” proposes to contribute a few billions. Is this helping or killing the deal?

The news broke two weeks ago: Dell wants to go private. The company would like to buy back all of its publicly traded shares.

The Apple forums are abuzz with memories of Michael Dell’s dismissal of Steve Jobs’ efforts to breathe new life into Apple in 1997:

What would I do? I’d shut it down and give the money back to the shareholders.

Is it now Michael’s turn to offer a refund?

Now we hear that Microsoft wants to lend a hand, as in “several billion dollars”. The forums buzz again: It’s just like when Bill Gates came to Jobs’ rescue and invested $150M in the Cupertino company, thus avoiding a liquidity crisis.

The analogy is amusing but facile. Dell 2013 isn’t Apple 1997. A look at Dell’s latest financials shows that the company still enjoys a solid cash position ($14B) and a profitable business (3.5% net profit margin). It’s profits may not be growing (-11% year to year), but the company is cash-flow positive nonetheless ($1.3B from the latest quarter). There’s no reason to fold up the tents.

As for Microsoft’s involvement: The Redmond company’s “investment” in Apple was part of a settlement of an on-going IP dispute. Microsoft avoided accusations of monopoly by keeping alive a highly visible but not overly dangerous adversary.

So what is Dell trying to accomplish by going private? To answer the question, let’s step back a bit and explore the whys and hows of such a move.

First, we have the Management Buyout. Frustrated with Wall Street’s low valuation, executives buy back their company “on the cheap” and run it in private for their own benefit. This rarely ends well.  Second-guessing the market is never a good idea, and the enormous amount of money that’s needed to pay off shareholders puts the execs at the mercy of bigger, smarter predators who turn out to be the ones who end up running the company for their benefit.

A good reason for going private is to allow a company to shift to a radically different business model without being distracted by Wall Street’s annoying glare and hysterics. This is what Dell is trying to do. They’re not shutting down shop, they’re merely closing the curtain.

Is it necessary to privatize for such a move? For an example that never came to pass, recall Bill Gates’ suggestion, in 1985, that Apple should get out of the hardware business and, instead, license the Mac operating system. At the time, the average revenue per Mac exceeded $2,500; a putative Mac OS license would have sold for $100. The theory was that Apple would eventually sell many, many more OS licenses than it did Macs.

The pundits agreed: “Just look at Microsoft!”.  Apple would jump from one slowly ascending earnings curve to a much steeper one.

Now picture yourself as John Sculley, Apple CEO, going to Wall Street with the following message: “We heard you, we’ve seen the light. Today, we’re announcing a new era for our company, we’ll be licensing Mac OS licenses to all comers for $100 apiece. Of course, there’ll be a trough; licensing revenue won’t immediately compensate the loss of Mac hardware sales. We need am ‘earnings holiday’ of about 36 months before the huge software profits flow in.”

You just became the ex-CEO. Wall Street dumps your shares, effectively telling you to take them back and only return after your “holiday” is over.

As another example that didn’t happen but probably should have, imagine if Nokia CEO Stephen Elop had taken his company private in 2011. Instead of osborning its Symbian business, Nokia would have had the latitude to perform the OS gender change behind closed doors and reemerge with a shiny new range of Microsoft-powered smartphones.

I’ll hasten to add that these made-up examples are somewhat unrealistic: To engineer a buyout, one must raise amounts of money commensurate with the company’s current valuation. Around 1987, Apple was worth about $2B, a great deal of money a quarter of century ago. In early 2011, Nokia’s market capitalization was about $40B, an impossibly large sum.

Still, thanks to these buyout fantasies, we get the two key ideas: First, Dell wants to go private because it plans to alter its business model in ways that would scare nervous, short-term Wall Street shareholders; second, the required amount of money (Dell’s market cap is about $22B) is a potential deal-killer.

We don’t have to look very far for the changes Dell wants to make. Dell no longer likes its legacy PC business and has made efforts to reposition itself as an enterprise player (expensive iron, software and services). Going private will allow it to perform the needed surgery, stanch the bleeding, and reemerge with a much stronger income statement, rid of low-margin commodity PCs.

When we look at the money that needs to be raised, things become really interesting. Michael Dell’s 15.7% ownership of the company undoubtedly helps, but the $22B market cap is still a big hill to climb. Several buyout firms and banks got involved in preliminary discussions; one group, TPG Capital, dropped out, but another, Silver Lake, has persisted in its attempt to round up big banks and other investors with enough funds to vacuum up Dell’s publicly traded shares.

That’s when Microsoft walks in on the discussions and offers to save Private Dell.

Clearly, Microsoft’s money will help in the buyout…but will its involvement torpedo Dell’s intentions? The NY Times DealBook article makes the case for Microsoft propping up the leading PC maker:

A vibrant Dell is an important part of Microsoft’s plans to make Windows more relevant for the tablet era, when more and more devices come with touch screens.

This would give Microsoft some amount of control over the restructured Dell, a seat on the Board of Directors, perhaps, with ways to better align the PC maker’s hardware with Redmond’s software. Microsoft wants Dell’s reinvigorated participation in the “Windows Reimagined” business.

But note the phrasing above: “Dell is an important part of Microsoft’s plans…” Better vertical integration without having to pay the full price for ownership, the putative “several billion dollars” would give Microsoft a significant ownership, 10% or 15%. This is completely at odds with the buyout’s supposed intent: Getting out of the PC clone race to the bottom.

Or maybe there’s another story behind Microsoft’s beneficence: The investor syndicate struggles and can’t quite reach the $22B finish line. Microsoft generously — and very publicly — offers to contribute the few missing billions. Investors see Microsoft trying to reattach the PC millstone to their necks — and run away.

Hats off to Steve Ballmer: Microsoft looks generous – without having to spend a dime – and forces Dell keep making PCs.

JLG@mondaynote.com

Google vs. the press: avoiding the lose-lose scenario

 

Google and the French press have been negotiating for almost three months now. If there is no agreement within ten days, the government is determined to intervene and pass a law instead. This would mean serious damage for both parties. 

An update about the new corporate tax system. Read this story in Forbes by the author of the report quoted below 

Since last November, about twice a week and for several hours, representatives from Google and the French press have been meeting behind closed doors. To ease up tensions, an experienced mediator has been appointed by the government. But mistrust and incomprehension still plague the discussions, and the clock is ticking.

In the currently stalled process, the whole negotiation revolves around cash changing hands. Early on, representatives of media companies where asking Google to pay €70m ($93m) per year for five years. This would be “compensation” for “abusively” indexing and linking their contents and for collecting 20 words snippets (see a previous Monday Note: The press, Google, its algorithm, their scale.) For perspective, this €70m amount is roughly the equivalent to the 2012 digital revenue of newspapers and newsmagazines that constitutes the IPG association (General and Political Information).

When the discussion came to structuring and labeling such cash transfer, IPG representatives dismissively left the question to Google: “Dress it up!”, they said. Unsurprisingly, Google wasn’t ecstatic with this rather blunt approach. Still, the search engine feels this might be the right time to hammer a deal with the press, instead of perpetuating a latent hostility that could later explode and cost much more. At least, this is how Google’s European team seems to feel. (In its hyper-centralized power structure, management in Mountain View seems slow to warm up to the idea.)

In Europe, bashing Google is more popular than ever. Not only just Google, but all the US-based internet giants, widely accused of killing old businesses (such as Virgin Megastore — a retail chain that also made every possible mistake). But the actual core issue is tax avoidance. Most of these companies hired the best tax lawyers money can buy and devised complex schemes to avoid paying corporate taxes in EU countries, especially UK, Germany, France, Spain, Italy…  The French Digital Advisory Board — set up by Nicolas Sarkozy and generally business-friendly — estimated last year that Google, Amazon, Apple’s iTunes and Facebook had a combined revenue of €2.5bn – €3bn but each paid only on average €4m in corporate taxes instead of €500m (a rough 20% to 25% tax rate estimate). At a time of fiscal austerity, most governments see this (entirely legal) tax avoidance as politically unacceptable. In such context, Google is the target of choice. In the UK for instance, Google made £2.5bn (€3bn or $4bn) in 2011, but paid only £6m (€7.1m or $9.5m) in corporate taxes. To add insult to injury, in an interview with The Independent, Google’s chairman Eric Schmidt defended his company’s tax strategy in the worst possible manner:

“I am very proud of the structure that we set up. We did it based on the incentives that the governments offered us to operate. It’s called capitalism. We are proudly capitalistic. I’m not confused about this.”

Ok. Got it. Very helpful.

Coming back to the current negotiation about the value of the click, the question was quickly handed over to Google’s spreadsheet jockeys who came up with the required “dressing up”. If the media accepted the use of the full range of Google products, additional value would be created for the company. Then, a certain amount could be derived from said value. That’s the basis for a deal reached last year with the Belgium press (the agreement is shrouded in a stringent confidentiality clause.)

Unfortunately, the French press began to eliminate most of the eggs in the basket, one after the other, leaving almost nothing to “vectorize” the transfer of cash. Almost three months into the discussion, we are stuck with antagonistic positions. The IPG representatives are basically saying: We don’t want to subordinate ourselves further to Google by adopting opaque tools that we can find elsewhere. Google retorts: We don’t want to be considered as another deep-pocketed “fund” that the French press will tap forever into without any return for our businesses; plus, we strongly dispute any notion of “damages” to be paid for linking to media sites. Hence the gap between the amount of cash asked by one side and what is (reluctantly) acceptable on the other.

However, I think both parties vastly underestimate what they’ll lose if they don’t settle quickly.

The government tax howitzer is loaded with two shells. The first one is a bill (drafted by no one else than IPG’s counsel, see PDF here), which introduces the disingenuous notion of “ancillary copyright”. Applied to the snippets Google harvests by the thousands every day, it creates some kind of legal ground to tax it the hard way. This montage is adapted from the music industry in which the ancillary copyright levy ranges from 4% to 7% of the revenue generated by a sector or a company. A rate of 7% for the revenue officially declared by Google in France (€138m) would translate into less than €10m, which is pocket change for a company that in fact generates about €1.5 billion from its French operations.

That’s where the second shell could land. Last Friday, the Ministry of Finances released a report on the tax policy applied to the digital economy  titled “Mission d’expertise sur la fiscalité de l’économie numérique” (PDF here). It’s a 200 pages opus, supported by no less than 600 footnotes. Its authors, Pierre Collin and Nicolas Colin are members of the French public elite (one from the highest jurisdiction, le Conseil d’Etat, the other from the equivalent of the General Accounting Office — Nicolas Colin being  also a former tech entrepreneur and a writer). The Collin & Colin Report, as it’s now dubbed, is based on a set of doctrines that also come to the surface in the United States (as demonstrated by the multiple references in the report).

To sum up:
— The core of the digital economy is now the huge amount of data created by users. The report categorizes different types of data: “Collected Data”, are  gathered through cookies, wether the user allows it or not. Such datasets include consumer behaviors, affiliations, personal information, recommendations, search patterns, purchase history, etc.  “Submitted Data” are entered knowingly through search boxes, forms, timelines or feeds in the case of Facebook or Twitter. And finally, “Inferred Data” are byproducts of various processing, analytics, etc.
— These troves of monetized data are created by the free “work” of users.
— The location of such data collection is independent from the place where the underlying computer code is executed: I create a tangible value for Amazon or Google with my clicks performed in Paris, while the clicks are processed in a  server farm located in Netherlands or in the United Sates — and most of the profits land in a tax shelter.
— The location of the value insofar created by the “free work” of users is currently dissociated from the location of the tax collection. In fact, it escapes any taxation.

Again, I’m quickly summing up a lengthy analysis, but the conclusion of the Collin & Colin report is obvious: Sooner or later, the value created and the various taxes associated to it will have to be reconciled. For Google, the consequences would be severe: Instead of €138m of official revenue admitted in France, the tax base would grow to €1.5bn revenue and about €500m profit; that could translate €150m in corporate tax alone instead of the mere €5.5m currently paid by Google. (And I’m not counting the 20% VAT that would also apply.)

Of course, this intellectual construction will be extremely difficult to translate into enforceable legislation. But the French authorities intend to rally other countries and furiously lobby the EU Commission to comer around to their view. It might takes years, but it could dramatically impact Google’s economics in many countries.

More immediately, for Google, a parliamentary debate over the Ancillary Copyright will open a Pandora’s box. From the Right to the Left, encouraged by François Hollande‘s administration, lawmakers will outbid each other in trashing the search engine and beyond that, every large internet company.

As for members the press, “They will lose too”, a senior official tells me. First, because of the complications in setting up the machinery the Ancillary Copyright Act would require, they will have to wait about two years before getting any dividends. Two, the governments — the present one as well as the past Sarkozy administration  — have always been displeased with what they see as the the French press “addiction to subsidies”; they intend to drastically reduce the €1.5bn in public aid. If the press gets is way through a law,  according to several administration officials, the Ministry of Finances will feel relieved of its obligations towards media companies that don’t innovate much despite large influxes of public money. Conversely, if the parties are able to strike a decent business deal on their own, the French Press will quickly get some “compensation” from of Google and might still keep most of its taxpayer subsidies.

As for the search giant, it will indeed have to stand a small stab but, for a while, will be spared the chronic pain of a long and costly legislative fight — and the contagion that goes with it: The French bill would be dissected by neighboring governments who will be only too glad to adapt and improve it.

frederic.filloux@mondaynote.com   

Next week: When dealing with Google, better use a long spoon; Why European media should rethink their approach to the search giant.

Linking: Scraping vs. Copyright

 

Irish newspapers created quite a stir when they demanded a fee for incoming links to their content. Actually, this is a mere prelude to a much more crucial debate on copyrights,  robotic scraping and subsequent synthetic content re-creation from scraps. 

The controversy erupted on December 30th, when an attorney from the Irish law firm McGarr Solicitors exposed the case of one of its client, the Women’s Aid organization, being asked to pay a fee to Irish newspapers for each link they send to them. The main quote from McGarr’s post:

They wrote to Women’s Aid, (amongst others) who became our clients when they received letters, emails and phone calls asserting that they needed to buy a licence because they had linked to articles in newspapers carrying positive stories about their fundraising efforts.
These are the prices for linking they were supplied with:

1 – 5 €300.00
6 – 10 €500.00
11 – 15 €700.00
16 – 25 €950.00
26 – 50 €1,350.00
50 + Negotiable

They were quite clear in their demands. They told Women’s Aid “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website.”

Recap: The Newspapers’ agent demanded an annual payment from a women’s domestic violence charity because they said they owned copyright in a link to the newspapers’ public website.

Needless to say, the twittersphere, the blogosphere and, by and large, every self-proclaimed cyber moral authority, reacted in anger to Irish newspapers’ demands that go against common sense as well as against the most basic business judgement.

But on closer examination, the Irish dead tree media (soon to be dead for good if they stay on that path) is just the tip of the iceberg for an industry facing issues that go well beyond its reluctance to the culture of web links.

Try googling the following French legalese: “A défaut d’autorisation, un tel lien pourra être considéré comme constitutif du délit de contrefaçon”. (It means any unauthorized incoming link to a site will be seen as a copyright infringement.) This search get dozens of responses. OK, most come from large consumers brands (carmakers, food industry, cosmetics) who don’t want a link attached to an unflattering term sending the reader to their product description… Imagine lemon linked to a car brand.

Until recently, you couldn’t find many media companies invoking such a no-link policy. Only large TV networks such as TF1 or M6 warn that any incoming link is subject to a written approval.

In reality, except for obvious libel, no-links policies are rarely enforced. M6 Television even lost a court case against a third party website that was deep-linking to its catch-up programs. As for the Irish newspapers, despite their dumb rate card for links, they claimed to be open to “arrangements” (in the ill-chosen case of a non-profit organization fighting violence against women, flexibility sounds like a good idea.)

Having said that, such posture reflects a key fact: Traditional media, newspapers or broadcast media, send contradictory messages when it comes to links that are simply not part of their original culture.

The position paper of the National Newspapers of Ireland association’s deserves a closer look (PDF here). It actually contains a set of concepts that resonate with the position defended by the European press in its current dispute with Google (see background story in the NYTimes); here are a few:

– It is the view of NNI that a link to copyright material does constitute infringement of copyright, and would be so found by the Courts.
– [NNI then refers to a decision of the UK court of Appeal in a case involving Meltwater Holding BV, a company specialized in media monitoring], that upheld the findings of the High Court which findings included:
– that headlines are capable of being independent literary works and so copying just a headline can infringe copyright
– that text extracts (headline plus opening sentence plus “hit” sentence) can be substantial enough to benefit from copyright protection
– that an end user client who receives a paid for monitoring report of search results (incorporating a headline, text extract and/or link, is very likely to infringe copyright unless they have a licence from the
Newspaper Licencing Agency or directly from a publisher.
— NNI proposes that, in fact, any amendment to the existing copyright legislation with regard to deep-linking should specifically provide that deep-linking to content protected by copyright without respect for  the linked website’s terms and conditions of use and without regard for the publisher’s legitimate commercial interest in protecting its own copyright is unlawful.

Let’s face it, most publishers I know would not disagree with the basis of such statements. In the many jurisdictions where a journalist’s most mundane work is protected by copyright laws, what can be seen as acceptable in terms of linking policy?

The answer seems to revolve around matters of purpose and volume.

To put it another way, if a link serves as a kind of helper or reference, publishers will likely tolerate it. (In due fairness, NNI explicitly “accepts that linking for personal use is a part of how individuals communicate online and has no issue with that” — even if the notion of “personal use” is pretty vague.) Now, if the purpose is commercial and if linking is aimed at generating traffic, NNI raises the red flag (even though legal grounds are rather brittle.) Hence the particular Google case that also carries a notion of volume as the search engine claims to harvest thousands of sources for its Google News service.

There is a catch. The case raised by NNI and its putative followers is weakened by a major contradiction: everywhere, Ireland included, news websites invest a great deal of resources in order to achieve the highest possible rank in Google News. Unless specific laws are voted (German lawmakers are working on such a bill), attorneys will have hard time invoking copyright infringements that in fact stem for the very Search Engine Optimization tactics publishers encourage.

But there might be more at stake. For news organizations, the future carries obvious threats that require urgent consideration: In coming years, we’ll see great progress — so to speak — in automated content production systems. With or without link permissions, algorithmic content generators will be able (in fact: are) to scrap sites’original articles, aggregate and reprocess those into seemingly original content, without any mention, quotation, links, or reference of any kind. What awaits the news industry is much more complex than dealing with links from an aggregator.

It boils down to this: The legal debate on linking as copyright infringement will soon be obsolete. The real question will emerge as a much more complex one: Should a news site protect itself from being “read”  by a robot? The consequences for doing so are stark: except for a small cohort of loyal readers, the site would purely and simply vanish from cyberspace… Conversely, by staying open to searches, the site exposes itself to forms of automated and stealthy depletion that will be virtually impossible to combat. Is the situation binary — allowing “bots” or not — or is there middle ground? That’s a fascinating playground for lawyers and techies, for parsers of words and bits.

frederic.filloux@mondaynote.com