Experts Differ on Trump Election's Effect of DOJ PRO Decision as Appeal Deadline Nears
Music licensing law experts diverged on how Donald Trump's election as president may impact DOJ's decision on whether to appeal a U.S. District Court ruling in New York against a portion of the department's review of American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees. Most stakeholders previously anticipated that DOJ will appeal the summary judgment by District Judge Louis Stanton, who ruled in September that the department's Antitrust Division erred in its concluding statement saying the department continues to believe existing decrees mandate 100 percent licensing (see 1609190062).
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The 60-day deadline to appeal Stanton's ruling to the 2nd Circuit Court of Appeals is set to expire this week. Attorney General Loretta Lynch and other department officials will make any decision on an appeal, several lawyers told us. Trump's inauguration is still more than two months away, so control of a DOJ decision is still “squarely within” Lynch's purview, said Digital Media Association General Counsel Greg Barnes: DOJ officials “will make a decision on an appeal based on the evidence they have on hand right now. I'd hope that decision will be motivated by policy positions rather than political interests.” DOJ didn't comment.
“I don't think the results of the election will have an effect on that decision,” said copyright and music licensing lawyer Karyn Ablin of Fletcher Heald. IP stakeholders have said they believe the incoming administration will take a hands-off approach to IP policymaking, allowing the House and Senate Judiciary committees to take the lead (see 1611090039). DOJ officials likely won't be factoring in possible post-transition changes in Antitrust Division policy into their pre-transition decisions, Ablin said. Even if the Trump administration's antitrust views were a factor, the ASCAP/BMI consent decrees review “doesn't seem like an issue that would turn on a hairpin” with the shift in power, she said.
Some DOJ officials believe “there's no reason for Justice not to appeal” Stanton's ruling “but “then again, we just had an election,” a music industry executive told us. DOJ could conceivably consider abandoning an appeal if it believes a Trump DOJ might “change course anyway,” the executive said. It may be pertinent to decide whether a Trump DOJ will view government regulation through the ASCAP and BMI rate courts “in a different way” from the department during President Barack Obama's administration, the executive said. It also may be important for the agency to consider whether a Trump administration would see music publishers as having a stronger property interest than the department has, the executive said.