Release of Final ASCAP/BMI Consent Decrees Decision Said Imminent
The DOJ Antitrust Division’s release of its final decision on its review of the department’s American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees is said to be imminent despite earlier perceptions that progress on the decision was stalled, several music licensing stakeholders told us. Music industry attorney Chris Castle told us a DOJ decision was likely Thursday. Other stakeholders said a decision was pending in the near future. DOJ collected feedback from stakeholders last month on a preliminary version of their decision not to alter the existing decrees and to issue language clarifying that the department continues to believe that existing music licensing rules mandate the use of 100 percent licensing (see 1607070040). Justice didn’t comment.
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Several music licensing stakeholders told us the DOJ remains on track to release a final decision on the consent decrees in the near future despite criticism from fractional licensing supporters. The department’s release of the decision remains “imminent” and there has been “no postponement” of the process because of the criticism, one music industry executive said. A copyright lobbyist said the agency originally planned to release the decision last week but the “attention [the preliminary decision] has gotten required getting people internally on board with the decision.” A decision could come “by the end of this week,” a music industry lobbyist said.
The slight delay in the DOJ’s release timeline for the final consent decrees decision may partially stem from the request by House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and four other House Judiciary Committee members for the department to “independently review” the expected decision for possible impacts to the music marketplace (see 1607200075), Castle said. “I get the feeling they suddenly got caught a little flat-footed” by the concerns Collins raised about the consent decrees decision in a letter to Attorney General Loretta Lynch and during a July hearing, Castle said: “I think they underestimated the level of bile” that would be directed at the department over the decision. The Collins letter “may have thrown another fly in the ointment” for Justice but delays in the process have “happened so many times” for other reasons, a music industry lobbyist told us. A Collins aide said the DOJ hadn't responded to the letter by our deadline.
None of the comments DOJ received from stakeholders appears to have made an argument that the Antitrust Division viewed as “substantive enough to turn their heads,” likely meaning the final consent decrees decision will substantially mirror the preliminary decision communicated to stakeholders, the music industry lobbyist said. Stakeholders’ comments to the department largely mirrored entrenched positions on the consent decrees and 100 percent licensing. Performing rights organizations, music publishers and music creators strongly opposed the 100 percent licensing interpretation, which they view as a shift in music licensing rules because the industry has frequently used fractional licensing (see 1607190063 and 1607200035). Broadcasters and some public interest groups supported the DOJ’s interpretation on 100 percent licensing (see 1607220046).
The final decision may address some concerns raised in the comments about how 100 percent licensing will affect foreign markets, particularly given the European Commission’s approval this week of Sony’s $750 million purchase of songs owned by the Michael Jackson estate, a lobbyist said. A final decision that leaves intact the DOJ’s preliminary decision against modifying the ASCAP/BMI consent decrees shouldn’t be surprising since Music Creators North America and other major music creator groups said they agreed with that aspect of the decision even as they opposed the 100 percent licensing language, said Public Knowledge Policy Counsel Raza Panjwani.