November 29, 2016 | Commentary on Property and Economic Rights
The Antitrust Division of the U.S. Department of Justice (DOJ) ignored sound law and economics principles in its August 4 decision announcing a new interpretation of seventy-five year-old music licensing consent decrees it had entered into separately with the two major American “performing rights organizations” (PROs) — the American Society of Composers, Authors, and Publishers (see ASCAP) and Broadcast Music, Inc. (see BMI). It also acted in a matter at odds with international practice. DOJ should promptly rescind its new interpretation and restore the welfare-enhancing licensing flexibility that ASCAP and BMI previously enjoyed. If DOJ fails to do this, the court overseeing the decrees or Congress should be prepared to act.
ASCAP and BMI contract with music copyright holders to act as intermediaries that provide “blanket” licenses to music users (e.g., television and radio stations, bars, and internet music distributors) for use of their full copyrighted musical repertoires, without the need for song-specific licensing negotiations. This greatly reduces the transactions costs of arranging for the playing of musical works, benefiting music users, the listening public, and copyright owners (all of whom are assured of at least some compensation for their endeavors). ASCAP and BMI are big businesses, with each PRO holding licenses to over ten million works and accounting for roughly 45 percent of the domestic music licensing market (ninety percent combined). Because both ASCAP and BMI pool copyrighted songs that could otherwise compete with each other, and both grant users a single-price “blanket license” conveying the rights to play their full set of copyrighted works, the two organizations could be seen as restricting competition among copyrighted works and fixing the prices of copyrighted substitutes – raising serious questions under section 1 of the Sherman Antitrust Act, which condemns contracts that unreasonably restrain trade. This led the DOJ to bring antitrust suits against ASCAP and BMI over eighty years ago, which were settled by separate judicially-filed consent decrees in 1941. The decrees imposed a variety of limitations on the two PROs’ licensing practices, aimed at preventing ASCAP and BMI from exercising anticompetitive market power (such as the setting of excessive licensing rates). The decrees were amended twice over the years, most recently in 2001, to take account of changing market conditions. The U.S. Supreme Court noted the constraining effect of the decrees in BMI v. CBS (1979), in ruling that the BMI and ASCAP blanket licenses did not constitute per se illegal price fixing. The Court held, rather, that the licenses should be evaluated on a case-by-case basis under the antitrust “rule of reason,” since the licenses inherently generated great efficiency benefits (“the immediate use of covered compositions, without the delay of prior individual negotiations”) that had to be weighed against potential anticompetitive harms.
The August 4, 2016 DOJ Consent Decree Interpretation
Fast forward to 2014, when DOJ undertook a new review of the ASCAP and BMI decrees, and requested the submission of public comments to aid it in its deliberations. This review came to an official conclusion two year laters, on August 4, 2016, when DOJ decided not to amend the decrees – but announced a decree interpretation that limits ASCAP’s and BMI’s flexibility. Specifically, DOJ stated that the decrees needed to be “more consistently applied.” By this, the DOJ meant that BMI and ASCAP should only grant blanket licenses that cover all of the rights to 100 percent of the works in the PROs’ respective catalogs, not licenses that cover only partial interests in those works. DOJ stated:
Only full-work licensing can yield the substantial procompetitive benefits associated with blanket licenses that distinguish ASCAP’s and BMI’s activities from other agreements among competitors that present serious issues under the antitrust laws.
The New DOJ Interpretation is bad as a Matter of Policy
DOJ’s August 4 interpretation rejects industry practice. Under it, ASCAP and BMI will only be able to offer a license covering all of the copyright interests in a musical competition, even if the license covers a joint work. For example, consider a band of five composer-musicians, each of whom has a fractional interest in the copyright covering the band’s new album which is a joint work. Previously, each musician was able to offer a partial interest in the joint work to a performance rights organization, reflecting the relative shares of the total copyright interest covering the work. The organization could offer a partial license, and a user could aggregate different partial licenses in order to cover the whole joint work.
Now, however, under DOJ’s new interpretation, BMI and ASCAP will be prevented from offering partial licenses to that work to users. This may deny the band’s individual members the opportunity to deal profitably with BMI and ASCAP, thereby undermining their ability to receive fair compensation. As the two PROs have noted, this approach “will cause unnecessary chaos in the marketplace and place unfair financial burdens and creative constraints on songwriters and composers.” According to ASCAP President Paul Williams, “It is as if the DOJ saw songwriters struggling to stay afloat in a sea of outdated regulations and decided to hand us an anchor, in the form of 100 percent licensing, instead of a life preserver.” Furthermore, the president and CEO of BMI, Mike O’Neill, stated: “We believe the DOJ’s interpretation benefits no one – not BMI or ASCAP, not the music publishers, and not the music users – but we are most sensitive to the impact this could have on you, our songwriters and composers.” These views are bolstered by a January 2016 U.S. Copyright Office report, which concluded that “an interpretation of the consent decrees that would require 100-percent licensing or removal of a work from the ASCAP or BMI repertoire would appear to be fraught with legal and logistical problems, and might well result in a sharp decrease in repertoire available through these [performance rights organizations’] blanket licenses.” Regrettably, during the decree review period, DOJ ignored the expert opinion of the Copyright Office, as well as the public record comments of numerous publishers and artists (see here, for example) indicating that a 100 percent licensing requirement would depress returns to copyright owners and undermine the creative music industry.
Most fundamentally, DOJ’s new interpretation of the BMI and ASCAP consent decrees involves an abridgment of economic freedom. It further limits the flexibility of copyright music holders and music users to contract with intermediaries to promote the efficient distribution of music performance rights, in a manner that benefits the listening public while allowing creative artists sufficient compensation for their efforts. DOJ made no compelling showing that a new consent decree constraint is needed to promote competition (100 percent licensing only). Far from promoting competition, DOJ’s new interpretation undermines it. In short, DOJ micromanagement of copyright licensing by consent decree reinterpretation is a costly new regulatory initiative that reflects a lack of appreciation for intellectual property rights, which incentivize innovation. In short, DOJ’s latest interpretation of the ASCAP and BMI decrees is terrible policy.
The New DOJ Interpretation is bad as a Matter of Law
DOJ’s new interpretation not only is bad policy, it is inconsistent with sound textual construction of the decrees themselves. As counsel for BMI explained in an August 4 federal court filing (in the Southern District of New York, which oversees the decrees), the BMI decree (and therefore the analogous ASCAP decree as well) does not expressly require 100 percent licensing and does not unambiguously prohibit fractional licensing. Accordingly, since a consent decree is an injunction, and any activity not expressly required or prohibited thereunder is permitted, fractional shares licensing should be authorized. DOJ’s new interpretation ignores this principle. It also is at odds with a report of the U.S. Copyright Office that concluded the BMI consent decree “must be understood to include partial interests in musical works.” Furthermore, the new interpretation is belied by the fact that the PRO licensing market has developed and functioned efficiently for decades by pricing, colleting, and distributing fees for royalties on a fractional basis. Courts view such evidence of trade practice and custom as relevant in determining the meaning of a consent decree.
The New DOJ Interpretation Runs Counter to International Norms
Finally, according to Gadi Oron, Director General of the International Confederation of Societies of Authors and Composers (CISAC), a Paris-based organization that regroups 239 rights societies from 123 countries, including ASCAP, BMI, and SESAC, adoption of the new interpretation would depart from international norms in the music licensing industry and have disruptive international effects:
It is clear that the DoJ’s decisions have been made without taking the interests of creators, neither American nor international, into account. It is also clear that they were made with total disregard for the international framework, where fractional licensing is practiced, even if it’s less of a factor because many countries only have one performance rights organization representing songwriters in their territory. International copyright laws grant songwriters exclusive rights, giving them the power to decide who will license their rights in each territory and it is these rights that underpin the landscape in which authors’ societies operate. The international system of collective management of rights, which is based on reciprocal representation agreements and founded on the freedom of choice of the rights holder, would be negatively affected by such level of government intervention, at a time when it needs support more than ever.
In sum, DOJ should take account of these concerns and retract its new interpretation of the ASCAP and BMI consent decrees, restoring the status quo ante. If it fails to do so, a federal court should be prepared to act, and, if necessary, Congress should seriously consider appropriate corrective legislation.
This piece first appeared in Truth on the Market.