Today, the Department of Justice’s Antitrust Division announced that it opened a review of its consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) -- the two most powerful organizations licensing music as well as the rights to publicly perform musical works.
Last Friday, the federal district court overseeing the BMI consent decree rejected the Department of Justice’s interpretation, holding that it did not prohibit so-called “fractional licensing.” In an opinion with little meaningful analysis, the court dismissed DOJ’s reading of the plain language of the consent decree, calling the consent decree language merely “descriptive.”
Yesterday, the Songwriters of North America (SONA), a songwriter advocacy group, sued the Department of Justice over its interpretation of the antitrust consent decrees governing ASCAP and BMI, the two largest U.S. performance rights organizations (PROs). The lawsuit alleges that the DoJ has, by simply reading the words of the consent decrees, unconstitutionally seized their property. While heavy on rhetoric, the complaint is light on actionable facts. It not only misunderstands the DoJ’s mandate, but is anchored in a breathtakingly overbroad vision of copyright law that should give any sensible observer pause, and serves as a reminder of the Copyright Office’s problematic relationship with industry.
The increasing frequency with which the Copyright Office has inserted itself into policy debates raises questions about the scope of its expertise and authority. An illustrative example of how the Office’s opinions can cause problems occurred earlier this year. During the Department of Justice’s Antitrust Division inquiry into how performance rights organizations (PROs) ASCAP and BMI license songs with multiple authors where not every author is a member of the PRO (i.e., where either PRO represents only a ‘fraction’ of the ownership stake in the song), a member of Congress sought out the opinion of the Copyright Office, and the Office responded. Although it’s unremarkable for an agency to offer its opinion in response to a lawmaker request, it is remarkable for that agency to reach into unfamiliar areas of law, ignore basic public policy concerns in that area of law, and offer its own unqualified judgment on matters properly within the jurisdiction of another agency.