The most important policy issue in the music business right now is copyright, which both tickets have been strong on. President Donald Trump has a reputation for taking a transactional approach to intellectual property issues in treaties, but Vice President Mike Pence has been what one music lobbyist calls a "go-to back channel" for issues that affect creators and rights holders. Pence has been "incredibly supportive of creators' rights," according to RIAA chairman/CEO Mitch Glazier.
Former Vice President Joe Biden, who for eight years served as chairman of the Senate Judiciary Committee, which has oversight over copyright, also has "a long track record of being very pro-copyright," says David Israelite, president/CEO of the National Music Publishers' Association. Biden has been outspoken about the importance of protecting copyright, saying that piracy is "no different than smashing a window at Tiffany's and grabbing [merchandise]."
Both Trump and Biden believe that the big U.S. online tech platforms are too loosely regulated and have said they intend to restrict the protection from liability for user postings they enjoy under Section 230 of the Communications Decency Act. Biden has said that the government is responsible for ensuring this provision isn't abused. Trump has engaged with the issue on Twitter — which benefits from Section 230 itself — tweeting, "If Congress doesn't bring fairness to Big Tech, which they should have done years ago, I will do it myself with Executive Orders. In Washington, it has been ALL TALK and NO ACTION for years, and the people of our Country are sick and tired of it!" (Section 230 doesn't address fairness.)
"Regulation is coming to Big Tech, and rightfully so," says Michael Hardaway, former Democratic leadership aide to Rep. Hakeem Jeffries (D-N.Y.). "But it should be with a scalpel, which is the Democratic plan, as opposed to the sledgehammer, which is the Trump/Republican plan."
Trump wants the short-video platform to either cut ties with the Chinese government or pull out of the United States, on the grounds that its data collection practices could let China track U.S. government employees and "build dossiers of personal information for blackmail and conduct corporate espionage." (In September, Oracle and Walmart announced a partnership to host TikTok's data on U.S. consumers, but the deal is still pending; meanwhile, a federal judge has put Trump's ban on hold.) Biden hasn't announced his stance, but in September he called the app's data-collection practices a "matter of general concern."
ASCAP/BMI CONSENT DECREES
For three years, Makan Delrahim, Trump's assistant attorney general for the Department of Justice Antitrust Division, has led a review of the consent decrees that essentially regulate how ASCAP and BMI license rights — potentially good news for music publishers and songwriters, who would like to see them loosened. Although he hasn't announced anything, Delrahim has expressed some skepticism about the current structure of the decrees, which went into effect in 1941, and in July, he hosted a two-day workshop on the issue, with speeches by LeAnn Rimes, Pharrell Williams and Jon Bon Jovi.
The Barack Obama administration had close relationships with technology companies that generally oppose strong copyright protections, and its review of the decrees came out against the practice of "fractional licensing," which allow public performing rights organizations that control part of a work to offer only that part. (A court ruled for BMI against the DOJ, and the matter was dropped.) If elected, Biden would have the authority to replace Delrahim, and some Democrats want to make antitrust a priority — but it's hard to say what that would mean for the decrees.
This article originally appeared in the Oct. 17, 2020, issue of Billboard.