ASCAP, BMI Announce Plans for Bilateral Fight Against Dept. of Justice Decision

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The Dept. of Justice's (DoJ) implementation this morning of a long-rumored rule change around the scope of performance licenses has already resulted in the two major U.S. performance rights organizations, ASCAP and BMI, declaring their intention to fight the decision tooth and nail.

“Unlike the DoJ," said BMI president and CEO Mike O’Neill in a statement on the news, "we believe that our consent decree permits fractional licensing, a practice that encourages competition in our industry and fosters creativity and collaboration among music creators, a factor the DoJ completely dismissed.  As a result, we have no recourse other than to fight the DoJ’s interpretation in court.  It won’t be easy, and we know it will take time, but we believe that it is the right thing to do and in the best interest of the industry at large.”

“The DoJ decision puts the U.S. completely out of step with the entire global music marketplace," says ASCAP CEO Elizabeth Matthews. "That is why ASCAP will work with our allies in Congress, BMI and leaders within the music industry to explore legislative solutions to challenge the DoJ’s 100 percent licensing decision and enact the modifications that will protect songwriters, composers and the music we all love.”

The two organizations have a bilateral strategy already in place. BMI will take legal action by filing a memorandum with its rate court to challenge the DoJ’s interpretation. ASCAP, meanwhile, will take the lead in pursuing legislative support for fractional licensing, which requires a licensee such as Spotify to acquire a license from all songwriters or their representatives and not just one, as full-works/100 percent licensing allows.

Insiders say that if BMI succeeds in securing a favorable decision from its rate court, that could help bolster ASCAP's efforts on Capitol Hill. 

In a joint press release, the two PROs say they “are united in their belief that the DoJ’s decision to mandate 100 percent licensing will cause unnecessary chaos in the marketplace and place unfair financial burdens and creative constraints on songwriters and composers.”

For their part, digital services, their lawyers and other music licensees don't think the change is as tectonic as the publishing and songwriting industry, countering that the doomsday scenarios being laid out don't gel with reality.

ASCAP, BMI and other industry stakeholders have also been working with key members of Congress on consent decree reform, and industry sources say they are finding a strong base of support in both chambers of Congress.

Finally, the DoJ itself today said it thought that legislation could replace the purpose of the consent decrees, in documents it released that its interpretation of the consent decrees requires full-works licensing.