There are occurrences in the music licensing world that may seem trivial. Sometimes, however, events that stay under the radar can turn into disasters. We try to alert you to these without going too far “into the weeds.”
A court proceeding scheduled for December 1st is such an occurrence. Titled “United States of America v. Broadcast Music, Inc.”, this is an appeal of an earlier decision made in favor of BMI. It will pit the U.S. Department of Justice (DOJ) against BMI before the U.S. Court of Appeals in New York City.
The main parties in the proceeding are the DOJ and BMI. Your committee, however, along with other music industry licensees, is considered a party because of an “amicus brief” (Friend of the Court) that we filed.
Background: We have previously shared that this dispute originated from a lengthy, two-plus year review by the DOJ of the ASCAP and BMI consent decrees. The decrees had been imposed on both ASCAP and BMI by the DOJ over 70 years ago. The reason? Throughout their history, these PROs have tended to misuse their power, sometimes in violation of U.S. antitrust laws.
Following its study, the DOJ decided to not alter the decrees. Instead, it added some clarity concerning the issue of “whole work licensing.” It required BMI to offer 100% licensing of all the works in its repertoire, even if a work is “split-licensed” – e.g., not all of the songwriters are BMI members.
BMI disagreed, and took the DOJ decision to a U.S. District Judge in New York, who invalidated it. On December 1st, that invalidation will be appealed.
Future Consequences: If the DOJ appeal is unsuccessful, it will mean that BMI will not fully license entire songs in its repertoire where non-BMI songwriters are involved. Should one of those rights-holders be independent of other PROs (ASCAP or SESAC), a station could be found to have infringed on the song.
Of all the coming threats to our music licensing sanity: GMR, WEB V, Sound Recording Performance Rights, etc., this case is potentially the most disruptive – and costly!
Without member generosity, NRBMLC and NRBNMLC could not cover all of the threats, even those that seem to be in the weeds. If you are so inclined, please PRAY!
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