Who did SONA sue?
SONA brought suit against the United States Department of Justice and two of its officials, sued in their official capacity: the Attorney General, Loretta E. Lynch, and the Acting Assistant Attorney General for the Department of Justice Antitrust Division, Renata B. Hesse.
What are the causes of action SONA is suing on?
SONA sued under two causes of action:
- SONA sued for a violation of their members' Fifth Amendment right not to be deprived of their property without due process of law. The "100% licensing mandate" diminishes and encumbers the copyright interests and private contractual rights of songwriters and composers. This property was taken by a method that violates SONA members' procedural and substantive due process rights and is taking their property without compensation from the government or a third-party.
- SONA sued for a violation of administrative law, specifically the Administrative Procedure Act (APA). Among other requirements, the APA precludes federal agencies from making rules or policies that are adopted without appropriate procedural safeguards, or are arbitrary, capricious, an abuse of discretion, otherwise unlawful, or unsupported by facts and the public record. The APA also prohibits federal agencies from exceeding their respective authority.
Where was the lawsuit filed?
The lawsuit was filed in the United States District Court for the District of Columbia (D.D.C.), which is a federal district court located in Washington, DC.
How is what SONA is doing different from what ASCAP and BMI are doing?
ASCAP is working towards a legislative fix to this issue, but legislation is not a sure thing and moves at a snail's pace regardless. BMI is bringing their own action to sue the DOJ and, on September 16, 2016, Judge Louis L. Stanton ruled that the Justice Department erred when it issued an interpretation of the consent decree that governs BMI. In his ruling, Judge Stanton decided that the interpretation of the Department of Justice’s antitrust division was incorrect. “Nothing in the consent decree gives support to the division’s views,” Judge Stanton wrote. In November 2016, the Department of Justice appealed Judge Stanton’s decision. BMI and the Department of Justice are currently litigating this appeal.
SONA's lawsuit is different from BMI's pending lawsuit in several important ways. First, the two cases are in different courts: SONA’s lawsuit was filed in federal court in Washington, DC, while the BMI lawsuit is pending in a New York federal court (specifically, the Southern District of New York, in Manhattan). SONA's lawsuit also alleges different wrongdoings by the Justice Department, so it presents questions that are not at issue in the BMI lawsuit. SONA's lawsuit intends to have the court declare the "100% licensing mandate" unconstitutional and unlawful as well as order the Department of Justice not to enforce or enable "100% licensing mandate" (see the next question).
What is SONA demanding as a result of the lawsuit?
SONA is asking the D.D.C. for four results:
- Declare the "100% licensing mandate" unconstitutional under the Fifth Amendment.
- Declare the "100% licensing mandate" unlawful by the APA.
- An order preventing the Department of Justice from enforcing or enabling the "100% licensing mandate."
- Any other relief or results that the court determines is appropriate.
Is the lawsuit costing SONA or its members any money?
No. At present, neither SONA nor its members have spent money on the lawsuit. Attorneys from Gerard Fox Law are donating their time and expenses for free (pro bono) to diligently and thoroughly advocate for the interests of SONA, its members, and other songwriters. Dina LaPolt, Esq. and Jay Cooper, Esq. have been knee deep in the trenches with us as well!
What is the current status of SONA’s suit?
In their initial response to SONA’s suit, the Department of Justice filed a motion to dismiss. A common litigation tactic, the motion to dismiss challenges the sufficiency of the legal theories and factual allegations in SONA’s suit. SONA’s attorneys have filed an opposition to the Department of Justice’s motion. The Department of Justice will likely file a reply, and the court will probably grant SONA’s request and schedule a hearing on the motion in April or May 2017. The court could announce a decision on the motion to dismiss at the hearing or in a later written decision.
As a member of SONA, do I have liability or legal exposure as a result of the lawsuit against the U.S. government?
No. As an individual member of SONA you do not have to be concerned about personal liability or legal exposure. SONA is a plaintiff in the lawsuit as an organization, so potential counterclaims or liabilities would be brought against SONA as an organization and not against SONA’s individual members. SONA and the individual songwriters who are named plaintiffs in the lawsuit are represented by Gerard Fox Law pro bono (for free). This means that potential legal work and related costs are incurred by Gerard Fox Law.