PROs, Music Publisher Comments Likely to Oppose DOJ Consent Decrees Decision
Opponents of DOJ Antitrust Division's preliminary decision on its review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees are more likely to protest the decision in comments to DOJ than propose changes to the Justice's implementation of the decision, several music industry lawyers and lobbyists told us. DOJ has been briefing stakeholders on its decision not to alter the existing ASCAP/BMI consent decrees and to clarify that 100 percent licensing, in which any partial owner of a song would be allowed to fully license that song, is required under music licensing rules. The department is seeking comments through Friday on the preliminary decision and has said it's mostly interested in hearing about specific implementation issues rather than formal objections (see 1607010065 and 1607070040).
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ASCAP, BMI, music publishers and many songwriters are continuing to voice “strong opposition” to the proposed decision and view proposing changes to implementation of the decision as a “Plan B in the whole scheme of how to deal with this,” said former Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. “I'm hearing about a strong visceral reaction to this, especially from songwriters because this will impact how they collaborate,” he said: “I think you're going to hear another chorus of calls to just get rid of” the ASCAP and BMI consent decrees entirely. Justice's preliminary decision gives both consent decrees “a feel of permanency and I'm not sure any consent decree is supposed to have that,” Rosenthal said.
Many opponents of the decision will be likely to file comments that will emphasize their opposition to the preliminary decision to varying degrees, Rosenthal said. “Some will be very moderate, some will be much more extreme and some will be both.” DOJ appears to be “getting songwriters in particular to buy into the idea that this is inevitable and that what they should be doing is have a role in deciding how this will be implemented as opposed to complaining about the change,” said music industry lawyer Chris Castle. “I don't think anyone is ready to do that yet. [DOJ isn't] likely to get any buy-in from the songwriter community on that.”
The PROs and other opposition stakeholders may suggest that DOJ “back off” from enforcing 100 percent licensing as a way of tweaking implementation of the consent decrees decision, Rosenthal said. “They'll probably say that if you're not going to allow us to withdraw from elements of the consent decrees, then certainly don't make things worse on licensing,” he said: “I think that's going to be the main focus” for the PROs and music publishers rather than the sorts of implementation changes that DOJ sought. The PROs “will probably be more diplomatic about their opposition [to the DOJ decision] but the songwriters are not,” Castle said. “The songwriters are at a point now where they're saying 'DOJ has been asking us for input for two years and every time we give them input it just gets worse for us, so why should we bother telling them anything? Let them figure it out.' I think the songwriters are just done.”
Opponents of the decision are likely to double down on opposition because of the possibility of legal challenges and legislative proposals aimed at addressing the issues in the consent decrees review, a music industry lobbyist told us. Proposals aimed at tweaking implementation would give the appearance that opponents are “surrendering” to the DOJ on the 100 percent licensing issue, “which is not in the PROs' or publishers' interest right now,” the lobbyist said. ASCAP and NMPA didn't comment. A BMI spokeswoman referred us to a Monday statement by CEO Michael O'Neill in which he said both PROs are continuing to “evaluate our options.”