Lowery Showers Congressional Panel With T-Shirts Calling for Abolition of Consent Decrees
A Monday congressional briefing on 73-year-old music licensing consent decrees was temporarily disrupted by David Lowery, a songwriter and business lecturer at the University of Georgia, when he threw bags of T-shirts on the panel’s table, saying Broadcast Music Inc. (BMI) paid him $17 for his co-written songs that had more than 1 million plays. The shirts were from his band, which “has nothing left to lose except the shirts on our backs,” he said in an interview. The bags were addressed to the Computer and Communications Industry Association (CCIA), NAB and the Digital Media Association (DiMA), all of which support consent decrees and had representatives on the panel, Lowery said. The example of consent decrees should be in “every textbook about why government meddling in the affairs of private business is wrong,” he said. “All of this is completely upside down.”
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Lowery’s “outburst was completely inappropriate and caught many congressional staffers by surprise,” said Gregory Barnes, DiMA general counsel, who moderated the panel. “Theatrical performances are best left to actors and tantrums are best left to kids,” he said. Barnes was “totally out of order,” said Lowery, who felt some members of the audience didn’t want Barnes to allow him to ask a question of the panel. “If they want to run me out of Congress, I don’t really care.”
The Department of Justice’s Antitrust Division announced in June (http://1.usa.gov/1l5Yck4) its review of existing consent decrees (CD June 5 p9). The consent decrees bar performing rights organizations (PROs) the American Society of Composers, Authors and Publishers (ASCAP) and BMI from refusing a license to any organization that requests one, leading to rate negotiations. ASCAP and BMI (CD June 10 p12) have sought reforms to the consent decree process in favor of direct negotiations between music publishers and broadcasters. The deadline for consent decree review comments is Aug. 6.
"Fracturing the [music] marketplace,” and “tilting the playing field potentially against songwriters” and PROs by changing the consent decrees “doesn’t make sense” as the House Judiciary Committee continues its copyright review under Chairman Bob Goodlatte, R-Va., said Casey Rae, Future of Music Coalition vice president-policy and education. “There very well may be appropriate, alternative paths” to fairly rewarding “songwriters and publishers” for their work, he said. DOJ is “probably going to look at” why PROs are “under antitrust consent decrees” in the first place, Rae said. Potentially abolishing the consent decrees “just because you might get higher rates doesn’t” seem to be “the smartest policy,” he said.
"There’s a lot of positive ways consent decrees can be modernized,” said Matthew Schruers, CCIA vice president-law and policy. “If updating” consent decrees “means wiping them out, that’s not going to help small artists,” he said. “Getting rid of the consent decrees isn’t going to help an individual performer.” “One of the benefits of the PROs” is their ability to license and collect royalties “nationwide” from local businesses, said David Oxenford, Wilkinson Barker partner, speaking on behalf of NAB. “Whether publishers withdraw” their music catalogs from PROs as they've threatened to do “remains to be seen,” he said. Oxenford said he doubts whether PROs would want to directly license their works to individual businesses.
Songwriters and music publishers should be able to negotiate with broadcasters without consent decrees, said Lowery, who suggested in its place the creation of a co-operative similar to those of farmers. Said Lowery: That companies worth more than a “trillion dollars” are “successfully playing the victim to songwriters” is “Kafkaesque.”