No one knows whether the Department of Justice under the Trump administration will alter its approach to the antitrust consent decrees that essentially regulate the collection societies ASCAP and BMI, but the legal fight against the Justice Department’s June 2016 decision on “100 percent licensing” is proceeding.
Late yesterday afternoon, the Songwriters of North America (SONA), a group of about 200 creators, filed a motion to oppose a motion for dismissal of its lawsuit challenging the Justice Department’s current – and, some would say, new – interpretation of the consent decrees. The big issue is the Justice Department’s newly stated policy that those decrees require – and, indeed, have always required – 100 percent licensing, meaning that ASCAP and BMI must offer all rights to any composition they offer some of the rights to. While this seems fairly technical, music publishing executives and songwriters believe it would drive down their royalties by creating a “race to the bottom.” It would also create a recordkeeping nightmare.
The SONA lawsuit was filed before BMI’s rate court judge ruled that fractional licensing is allowed under the organization’s consent decree, when the prospect of 100 percent licensing seemed both more immediate and more frightening. “We thought we were in a hopeless situation,” says Dina LaPolt, a lawyer who advises SONA.
ASCAP, but many see the Trump Administration as friendlier to copyright – so the Justice Department may simply change its policy. “The Republicans are pretty much horrified by the regulation of songwriters in the first place,” LaPolt says. “They see copyright as private property that the government shouldn’t regulate.”
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