WHO DID SONA SUE?
In September 2016 SONA brought suit against the United States Department of Justice and two of its officials, sued in their official capacity: then Attorney General, Loretta E. Lynch, and then Acting Assistant Attorney General for the Department of Justice Antitrust Division, Renata B. Hesse.
What were the causes of action SONA was suing on?
SONA sued under two causes of action:
1. 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.
2. 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 was what SONA is doing different from what ASCAP and BMI did?
ASCAP worked towards a legislative fix to this issue, but legislation is not a sure thing and moves at a snail's pace regardless. BMI was in the process of 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. On December 19, 2017, the Second Circuit Court of Appeals ruled in favor of BMI, songwriters and publishers on the issue of 100% licensing, allowing for fractional licensing. In March 2018, the Department of Justice let the deadline to file its appeal of the December 2017 decision pass by, effectively settling the matter.
SONA's lawsuit was different from BMI's lawsuit in several important ways. First, the two cases were in different courts: SONA’s lawsuit was filed in federal court in Washington, DC, while the BMI lawsuit was handled in a New York federal court (specifically, the Southern District of New York, in Manhattan). SONA's lawsuit also alleged different wrongdoings by the Justice Department, so it presented questions that were not at issue in the BMI lawsuit. SONA's lawsuit intended 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 was SONA demanding as a result of the lawsuit?
SONA was 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.
Did the lawsuit cost SONA or its members any money?
No. Neither SONA nor its members spent money on the lawsuit.
What is the current status of SONA’s suit?
SONA has prevailed in its fight against the Department of Justice on this matter. On February 16, 2018, the Department of Justice filed a motion simply asserting that it does not believe that the court had proper jurisdiction to adjudicate the subject matter of the claim. They did not touch on the actual merits of the claim or their argument on the issue. SONA also filed a supplemental brief on February 16, 2018, asserting that since the Second Circuit has ruled in favor of fractional licensing under its interpretation of BMI's consent decree, the Department of Justice has effectively lost its argument on its merits under our case. Furthermore, since the ASCAP consent decree's language mirrors that of BMI's, and it is also governed by the Second Circuit, we believe and further asserted in our February 16, 2018 motion that the issue is settled as a matter of law with respect to the ASCAP as well as BMI, ending SONA's need to continue our complaint. Accordingly, on February 23, 2018 we filed a voluntary dismissal without prejudice of our claim, meaning that we have withdrawn our claim but if there is a time in the future that this matter is once again up for argument we will be able to fully pursue and defend our position. Considering that the Department of Justice has let its March 2018 deadline pass to file an appeal in the BMI matter, we feel confident that the issue is settled as a matter of law.
We are forever appreciative of the legal strategy employed by SONA Attorney-Advisor Dina LaPolt and all the litigation and legal hours incurred by Gerry Fox and the legal team of Gerald Fox Law with the assistance of Jay Cooper, Jacqueline Charlesworth, and Sandra Aistars. All of these amazing attorneys graciously gave their time fighting this fight on a pro bono basis.