Posted on 07/25/2020 5:15:21 AM PDT by Kaslin
One of the 115th Congress’s proudest moments was the passage of the Music Modernization Act (MMA). Few bills pass both the House of Representatives and the Senate unanimously, but in this case, Republicans and Democrats were willing and eager to protect musicians and businesses that seek to play music by simplifying the licensing process. By all accounts, the bill amounted to a resounding success. Unfortunately, however, a recent announcement from the Antitrust Division within the DOJ has some of the MMA’s biggest champions concerned that the improvements Congress made to the music licensing marketplace could be short-lived.
On July 28 and 29, the Antitrust Division will hold a series of panels to discuss competition in the licensing of public performance rights in the music industry. The event will focus largely on whether the antitrust consent decrees that govern the two largest music collectives are “inhibiting” the industry. This discussion is part of the Antitrust Division’s review of whether to maintain these consumer protections or ease them. Congress authored the MMA under the expectation that these decrees would remain in place as-is. As a former attorney in the Antitrust Division who studied these decrees at length, I believe that weakening or eliminating them would disrupt the entire marketplace’s functionality and undercut the reforms that Congress passed on a bipartisan basis through the MMA.
ASCAP and BMI are Performing Rights Organizations (PROs) – entities that license performing rights to the businesses which publicly perform music, including restaurants, retail stores, coffee shops, TV and radio broadcasters, and digital services like Spotify. Comprised of otherwise competing music publishers, these two organizations license 90-percent of all available music. Absent the decrees, competing music publishers banding together under the ASCAP and BMI banners would be not only harmful to consumers; it would also be illegal under the Sherman and Clayton Antitrust Acts.
The consent decrees provide safety rails to protect consumers and provide efficiencies for both businesses and music creators alike. Like the licensing system Congress created within the MMA for digital services, these antitrust remedies allow businesses to play everything within ASCAP and BMI’s repertoires by purchasing one blanket license.
Without the stability created by these decrees, the MMA would not have been possible. Businesses would continue to struggle to purchase the licenses they need, and performers would consequently have fewer places for their music to be heard. That’s why Congress, along with veterans of the DOJ’s Antitrust Division like me, was so puzzled that, less than two weeks after the House passed the MMA, the Antitrust Division began a Judgement Termination Program into the many consent decrees it manages. Perplexingly, the ASCAP and BMI decrees quickly became a focal point of its review process. This examination into their effectiveness occurred despite a recent and significant DOJ fine brought against ASCAP for predatory behavior, and irrespective of the fact that the Antitrust Division just completed a multi-year review of the ASCAP and BMI decrees in 2016, determining nothing about them should change.
For these reasons, then-House Chairman Bob Goodlatte, Senate Judiciary Chairman Chuck Grassley (R-Iowa), and House and Senate Judiciary Ranking Members Jerrold Nadler (D-N.Y.) and Dianne Feinstein (D-Calif.) sent a letter to the Justice Department’s Antitrust Division expressing concerns. In the letter, they made clear that, “destabilization of the music marketplace” through altering the decrees “would undermine our efforts on the Music Modernization Act.” Before the MMA passed the Senate, they also made sure to include language that ensured Congress would have more input into the DOJ’s review process in an abundance of caution.
Two full years have come and gone, and yet the DOJ is still reviewing the ASCAP and BMI decrees. Its recent announcement of an upcoming public workshop on the issue has only magnified the concerns previously expressed during the initiation of the Termination Program over the possibility that the Department may make significant changes to them.
AG Barr must recognize that weakening these decrees will not only harm musicians and businesses, but it would also compromise many of the benefits created by one of the most significant bipartisan congressional achievements in a generation. In the present day’s divided political climate, that is an outcome that everyone should want to avoid. Barr and his Antitrust Division should take a stand for bipartisanship by deciding against weakening these decrees
Bagpipes has an Antitrust Division? Why isn't he going after twitter/facebook/google who are colluding, RICO style, to stifle Conservative voices?
In this digital download age of music, songwriter royalties have been reduced to pocket change. Music creators are more exploited than ever. One of the main reasons ancient rock bands still tour is their recorded music is now earning them nearly nothing.
While I agree that the current system does protect the political divide (not that it matters because I think most campaigns will honor the musicians who throw a fit just because it’s bad PR) I’d like to see at least some reporting as to the merits of the investigation.
It does seem to me that only TWO licensing houses unfairly stifles competition for funding for musicians themselves.
Damn good question. You just described a far more urgent and important problem than some modern artist missing out on their nickel because a song they performed a generation ago gets played in some elevator.
Any new laws will benefit the lawyers more than the artists. Almost any spin could be litigated. Imagine neighorhood bar bands having to manuver through the maze of different licening entities. Even the copyright owners of Happy Birthday wanted royalties from family birthday parties. Many artists who wrote the songs, no longer own the rights. In those cases the publishing houses and legal firms will be getting enriched.
I can see this limiting exposure to artists catalogues. Listen to your “Classic Rock” station. The same 400 tracks and very little from the 60’s and 70’s. It’ll be even more restrictive.
Good points, but it looks like two separate issues are getting blurred here. Royalties and ownership of music content are governed by copyright law. Anti-trust laws are aimed at protecting the consumer, not the artist or the record label.
As soon as Durham finishes his indictments, and they break up the mobs, then they can focus on other issues like this.
A long old article from a source usually considered addled.
If interested in this topic, take the time and enjoy her perspective.
Courtney Love does the math
The controversial singer takes on record label profits, Napster and “sucka VCs.”
“Record companies are terrified of anything that challenges their control of distribution. This is the business that insisted that CDs be sold in incredibly wasteful 6-by-12 inch long boxes just because no one thought you could change the bins in a record store.”
“Record companies stand between artists and their fans. We signed terrible deals with them because they controlled our access to the public.
But in a world of total connectivity, record companies lose that control. With unlimited bin space and intelligent search engines, fans will have no trouble finding the music they know they want. They have to know they want it, and that needs to be a marketing business that takes a fee.”
https://www.salon.com/2000/06/14/love_7/
I have heard the modern music and it ain’t worth protecting!!
Trump never stopped using any song did he? Who cares what lib musicians say?
If you’re not charging money to hear the music what is the issue? It’s no different than playing the music at a party at your house or wedding.
You’ve got it wrong.
Any public play of a song incurs royalties— ASCAP and BMI under normal circumstances employ ‘agents’ to visit bars, grocery stores, barber shops... you name it... looking for anyone playing music loud enough to be heard.
Live music draws special attention because the rights are separate and different than playing recorded or over the air music. This is in part the reason for the rise of Muzak— Muzak was cheaper than the original work because you were only paying the copyright holder (or writer) of the song, but not the record company’s share. Muzak recordings negotiated lower rates with the licensees, generally a ‘buyout’ based on potential ’ears’.
If Trump has paid the license (he’d be a fool not to), there’s not a lot the artist can do, as ASCAP negotiates with publishers, and most artists assign their rights to the publisher. It’s the reason Rush was able to use that Pretenders song (that, and the fact that Chrissy Hynde’s dad was a ditto head; she chose to donate the royalties).
It’s a moot point in the days of Covid, but I remember in my big city bar crawling back in the day occasionally stopping into a bar with a notice nothe door (essentially an injunction) that they couldn’t play music until they’d settled with ASCAP.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.