In light of the lawsuit between Robin Thicke, Pharrell Williams, and T.I. vs. Marvin Gaye regarding whether “Blurred Lines” infringes the copyrights to “Got to Give It Up,” Meredith Whipple interviews Charles Duan as he takes us through music history to demonstrate common patterns in songs, why these exist, and how that’s a good thing for music.
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 the words of 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.
Two of the copyright issues Public Knowledge has been working on seem disconnected from each other, but there's a common theme. In both the performance rights organization (PRO) and set-top box issues, policymakers should be clear in their understanding that private contracts can't be used to override other provisions of law. Just as the interests of some industry participants don't override legally-binding consent decrees, neither do they provide a reason for the Federal Communications Commission to ignore its statutory mandate to promote set-top box competition.
Today, the Department of Justice concluded its review of the antitrust consent decrees governing ASCAP and BMI, the two largest music performance rights organizations (PROs) in the United States. After two years of extensive public comment and analysis, the Department has determined it would be inappropriate to amend the consent decrees in ways that would enable music publishers to take greater advantage of their market dominance in negotiating licenses. Additionally, it has clarified licensing practices that came to light during its review. Public Knowledge has advocated for the Department to adopt these positions throughout the review and welcomes the decision.