Music Creators Protest, Boycott Comments on DOJ's PRO Consent Decrees Decision
Several music industry content creators who were previously active participants in DOJ Antitrust Division’s review of the department’s American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees confirmed they either protested Justice’s preliminary review decision via comments to the department or boycotted the new round of comments entirely, as expected (see 1607120077). DOJ briefed stakeholders earlier this month 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. DOJ sought comment from music industry stakeholders through Friday on the preliminary decision but said it mostly was interested in hearing about specific implementation issues rather than formal objections (see 1607010065 and 1607070040). DOJ could release its final decision as soon as Monday, a music industry lobbyist told us.
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ASCAP, BMI and the National Music Publishers Association were expected to file comments on the preliminary decision, but wouldn't tell us whether they did submit comments or the focus of those comments. ASCAP and BMI spokespeople referred us to previous statements by the performing rights organizations’ (PROs) leaders in which they opposed DOJ’s preliminary decision and said they were exploring other options for addressing their concerns. Several other music licensing stakeholders not connected to music creators told us they filed comments in support of Justice’s preliminary decision that offered suggestions for “slight” adjustments to implementation of the decision. Public Knowledge, which has supported DOJ’s preliminary decision, chose not to file additional comments on the decision because the group “felt that we had already put what we needed to in the record” during previous comment rounds during the review process, said PK Policy Counsel Raza Panjwani. PK would have offered only support for the decision as written while DOJ appeared to be looking for suggestions for “additional clarification” of the decision language, Panjwani said.
The PROs and content creators had been united in opposition to DOJ’s preliminary decision but ASCAP and BMI were expected to take a more diplomatic tone in formal communications with the department. Content creators were more vehement in their opposition to the decision, with some declaring enough frustration with the review process to simply stop commenting altogether. Musician George Johnson told us he filed comments in strong opposition to the preliminary decision, noting his concern that the decision is one of several government actions to negatively impact music creators. Music industry lawyer Chris Castle and others criticized the Antitrust Division for what they view as a bias in favor of Google’s interests in music licensing. DOJ didn’t comment.
Many content creators “believe the DOJ’s review has been rigged in some way” and that they have “already burned a lot of energy” since the department’s review began in 2014, Castle said. “We went through this whole charade of a review process and now [the DOJ wants] us to comment about how to best implement something that’s not based in reality? No, we’re not going to do that.” Songwriters in particular, he said, “are just not inclined to participate anymore because what they say is not going to be taken into account and they don’t want to give cover to [DOJ] that somehow this is an industry consensus, which it’s not.” David Lowery, a songwriter and University of Georgia music business lecturer, said he's among the songwriters who boycotted the request for comment, saying he believes DOJ “dug this hole” and he’s unwilling to help them get out of it. He said he encouraged other songwriters to also refrain from commenting because the DOJ’s entire review process has been “completely offensive to songwriters.”
Music creators are expected to push for action against the Justice’s review decision if the department moves forward with an interpretation of the licensing rules requiring 100 percent licensing, including a formal call for a congressional investigation, several lobbyists told us. House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and other lawmakers who have focused on music licensing issues already have raised concerns about the preliminary decision. Collins is expected to take further action related to his concerns about the decision as soon as Friday, a music industry lobbyist told us.
The concerns Collins and other lawmakers already raised about the decision could be precursor to more formal congressional objections, Castle said. Several songwriters are drafting a letter calling for a congressional investigation, which they believe likely will “get a positive reception” from Collins and others, Lowery said. "Songwriters want blood” over the DOJ decision and are exploring all possible avenues for reversing the decision, said IP and entertainment lawyer Dina LaPolt, attorney adviser to the Songwriters of North America.