House Judiciary Members Ask DOJ to 'Independently Review' PRO Consent Decrees Decision
House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and four other House Judiciary Committee members asked DOJ Wednesday to “independently review” the Antitrust Division’s expected decision in its review of the department’s American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees. DOJ is to release a final decision on the consent decrees review by the end of July. ASCAP, BMI and a range of music creators raised concerns about a preliminary version of the decision, after briefings earlier this month (see 1607070040 and 1607120077). DOJ didn't comment.
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The request for an independent review, as expected (see 1607190063), builds on concerns that Collins and other lawmakers raised about the DOJ review during a July 12 hearing with Attorney General Loretta Lynch. “We are writing to formally register our concerns about this decision” after the July 12 hearing and to request that Lynch’s office independently review the consent decrees “to carefully examine the impacts of this decision on the music marketplace,” Collins and the other lawmakers said in a joint letter to Lynch. The other signatories were Reps. Judy Chu, D-Calif., Trent Franks, R-Ariz., Hakeem Jeffries, D-N.Y., and Steve Cohen, D-Tenn. The lawmakers asked Lynch to respond by July 29.
The lawmakers noted the Copyright Office said in February that it opposes reinterpreting music licensing rules to mandate 100 percent licensing (see 1602260034). The CO also concluded in its 2015 music licensing report (see 1502050055) that “many aspects of the current consent decrees are problematic,” the lawmakers said: “We cannot fathom how, after a nearly three year investigation, the Antitrust Division could come to the opposite conclusion, and decide that the only change needed” to the 1941 consent decrees “is one that will dramatically hurt songwriters and further disrupt the market.”
Songwriters Guild of America President Rick Carnes praised Collins and the other lawmakers in an interview, telling us he believes Lynch’s office “should look at the consent decrees decision before they make it final.” Antitrust “got this wrong” and should “think very long and hard before implementing it,” Carnes said. “We are extremely supportive of any Congressional efforts to bring about an independent review of the DOJ’s recent decision regarding the consent decrees that affect thousands of songwriters,” said National Music Publishers Association CEO David Israelite in a statement. “The gravity of DOJ’s decision -- which is incomprehensible to the songwriting community -- merits a review, and the discrepancies” in DOJ officials’ statements to Congress about the review “clearly demand an explanation.”
The lawmakers’ letter doesn’t fully clarify the parameters of the independent review they want DOJ to do. Given music creators’ view that “there’s been something of a hothouse environment at DOJ about [the consent decrees review], it would probably be good to have fresh eyes take a look at what they’ve been doing, assuming there wouldn’t be pressure for that review to come up with a particular result,” said music industry attorney Chris Castle: “Nobody really knows exactly what it is that they’d review at this point given that what we know about the decision comes from” the stakeholder briefings. “Presumably, they know since they’ve been reading aloud from a draft, so if they’re going to review that draft, it would be” more transparent than Antitrust’s review has been, Castle said. David Lowery, a songwriter and University of Georgia music business lecturer who previously commented in the DOJ review, said he believes the request for an independent review is “absolutely right” because it would increase the transparency of the review process.
An independent review of the DOJ decision “isn’t going to change the plain language of the [consent] decrees,” said Computer and Communications Industry Association Vice President-Law and Policy Matthew Schruers in an email. “The DOJ's position is that the antitrust content decrees' language that requires PROs to grant licenses ‘to perform all of the works in [their] repertory’ actually means what it says. All of the works. An independent review would merely confirm the consent decrees say exactly that. Indeed, DOJ's view can hardly be a radical new interpretation when many licensees have long operated under the impression that a PRO license actually had value -- i.e., it allowed them to perform works in the PRO's repertory.” Schruers also questioned Collins’ reliance on the CO’s opinion on 100 percent licensing, noting that the Patent and Trademark Office is the White House’s main advisory agency on IP issues while the CO is only authorized to advise Congress on copyright policy.
Digital Media Association General Counsel Greg Barnes disputed perceptions that songwriters have been fully against the DOJ decision. He noted that Music Creators North America and two international groups of music creators have said they agreed with DOJ’s decision not to approve music publishers' request to allow “partial withdrawal” from the ASCAP and BMI consent decrees even as they opposed the 100 percent licensing language. MCNA and the two other music creators groups -- the European Composers and Songwriters Alliance and the International Council of Music Creators -- said in comments to DOJ obtained Tuesday that they believe not allowing partial withdrawals is a positive step but “we do not regard this narrow point as negating in any way the damage” caused by the rest of the preliminary decision (see 1607200035).