Public comment closes on Justice Department’s consent decree review, revealing more industry division

The Department of Justice has closed the open comment period for its review of the consent decrees governing ASCAP and BMI. Both of the performing rights organizations have submitted their views on the subject, as have other groups from the music and audio industry. Even though the topic was recently addressed by the DOJ, the sector still has deeply divided interests in how these rules may or may not change.

ASCAP and BMI took their stance early on in the review process, beginning with a joint open letter laying out their ideal vision for the consent decrees. The groups want the current decrees to end. Their suggested replacements including a different structure for interim fees and additional licensing options, while retaining the rate court process that was recently reformed by the Music Modernization Act. Both groups reiterated their stance with their latest comments to the DOJ.

There are opponents to the PROs’ vision. Several groups, including the Radio Music Licensing Committee, the Digital Media Association, and the MIC Coalition, called on the Justice Department to continue using the consent decrees as they were most recently revised in 2016.

“These are not some archaic, outdated settlements of legal disputes whose relevance has long-since dissipated,” the RMLC and DiMA said in a joint statement. “They are the cornerstones of contemporary music licensing practices in industries from over-the-air radio, to digital streaming platforms, and beyond…. The public interest would be severely harmed if they were diluted, significantly limited, or — worse yet — put on a path to outright elimination by the Department.”

The music industry has already undergone massive changes over the past few decades, and the law often struggles to keep pace with such rapid shifts. Even the organizations in question face challenges related to the technologies that have emerged, with incomplete or inaccurate metadata, piecemeal systems for licensing, and unclear structures for who controls what rights posing problems for all parties in the music business.

Anna Washenko