THE DEPARTMENT OF JUSTICE HATES SONGWRITERS: A PRIMER

Here at SONA, we are all songwriters. What this means is that we are a community of individual small business owners who rely on income derived from the compositions we write and then license to a patchwork of outlets from radio stations to department stores who play our songs.

You may be surprised to learn that the value of a songwriter’s work is regulated by the US government and has been for over 75 years. As part of an antitrust settlement in 1941, the US Department Of Justice enacted rules of engagement between songwriters and licensors called “consent decrees”, ostensibly to protect the fledging broadcast industry from price gouging by the dudes who licensed all the music, the performing rights organizations ASCAP + BMI.  The consent decrees made a lot of sense at the time seeing as the PRO’s were behaving in a way that was, shall we say, monopoly-ish, but they were certainly not meant as a forever remedy to a temporary market problem. Yet here we are. To this very day, Congress, through the consent decrees sets the rate at which I am compelled to license my songs, which is predictably below market rate because, duh, government. 

My use of the word “compelled” just then was not decorative. Under ASCAP’s consent decree, I cannot negotiate and I cannot say no. I am literally legally compelled to grant licenses to anyone who asks. One time, I discovered that conservative crybaby, Glen Beck was using a song on his radio show by my band Letters To Cleo and I was all, “Hell, no!”  But hey, guess what, SURPRISE!  Ain’t my call. 

Over the years, ASCAP + BMI songwriters have made a fragile peace with the consent decrees, somehow adapting quite well despite obvious price fixing and rate suppression. The licensing structure has worked because there’s been an understanding between songwriters and licensors that a song copyright has value and that use of songs requires a transaction. 

In 1998, the first fissures in the music licensing compact began to form with the passage of the Digital Millennium Copyright Act, which began chipping away at the “property” part of intellectual property with the legal codification of utopian sounding concepts such as “Fair Use” & “Safe Harbor”. Again, it seemed reasonable, if wildly abstract at the time. I mean, Napster wasn’t even   a thing yet and the iPod wouldn’t be introduced to the public for another 3 years. 

Today, in real-world practice, the DMCA among other negative outcomes, gives cover to online music platforms that engage in infringing behavior, whether by streaming or offering downloads of improperly licensed music or outright pirating. Songwriters on the other hand, are constrained by artificially low digital rates determined by overwhelmed rate courts (thanks, consent decrees!) and a gossamer legal framework that hasn’t remotely kept up with technology and does little to protect the property of copyright owners (thanks, Congress!).

We, the songwriters, went to the Department of Justice to ask for relief and protection through the modification of the consent decrees. We didn’t even ask that these antiquated relics to be shredded into the compost heap of the 20th century where they belong. We asked for help. We explained our position. We implored them to make common sense modifications to the consent decrees that might help make our industry just a bit more nimble in a fast moving digital marketplace.

Apparently, the Department Of Justice did not feel moved.  Because you want to know what they did instead? Instead, the DOJ's Antitrust Division has inexplicably just made our plight significantly worse by ignoring the specific issues we raised, distorting the language of the consent decrees to solve a problem that did not exist, bypassing decades-long industry practice by compelling ASCAP + BMI to issue licenses for fractions of songs they that they do not represent. This is known as 100% licensing and it is a nightmare for us, while paving a smoother, more carefree road for digital platforms to exploit our copyrights. They have done this despite our pleas, despite no monopolistic behavior on our side and thus, for seemingly for no good reason. No reason, that is, unless one considers that the head of Antitrust is Renata Hesse, former counsel for Google. And who is the primary beneficiary of this massive "F#*% YOU" to the songwriting profession? You guessed it: Google. 

SONA members join a growing chorus of songwriters, legislators, publishers, PRO’s, and journalists in condemning the DOJ’s outrageous and arrogant decision. We will use whatevermeans we have at our disposal, whether through legal channels or the press, to inform the public of the truth as we see it: That the DOJ’s Antitrust Division under the leadership of Renata Hesse is not interested in fostering healthy competition or curtailing monopolistic behavior. It took them 2 years of engaging in legal hopscotch to effectively protect Google, the most powerful monopoly in history, from middle-class songwriters, the individual small business owners who started out in this “negotiation” with practically no power and walk away with even less. The destruction that has been callously inflicted on the songwriting profession will not be received quietly. The overreach by the Antitrust Division’s lawyers will not go unanswered. Stay tuned..

In Solidarity,

Kay Hanley
Co-Executive Director
Songwriters Of North America