ASCAP, BMI, NSAI Respond to DOJ’s Appeal Of BMI Consent Decree Ruling

Industry organizations have issued responses to recent developments related to the BMI Consent Decree. On Sept. 16, federal Judge Louis Stanton issued an order rejecting the U.S. Department of Justice’s (DOJ) recent interpretation of the BMI consent decree. Stanton concluded that BMI is free to engage in the fractional licensing of musical works. Today the DOJ filed a notice of appeal in the matter.

On August 4, 2016, after nearly two years of review, the Justice Department’s Antitrust Division issued a closing statement, in which it declined to update the 75-year-old ASCAP and BMI consent decrees in ways that songwriters and other music creators had requested. Instead the DOJ called for ASCAP and BMI, to license all songs within their repertoire on a 100% or “full” works basis, which means they must license shares of a work controlled by their own member and affiliates as well as shares controlled by members and affiliates of other PROs. That same day, BMI filed a lawsuit in its Rate Court challenging the government’s 100% licensing interpretation of the consent decree.

Following the DOJ closing statement in August, ASCAP and BMI announced plans to pursue a joint strategy to address the DOJ’s failure to modernize the aging consent decrees and its decision to mandate 100 percent licensing, with BMI taking the lead on litigation and ASCAP exploring legislative reforms in Congress.

In regards to Stanton’s ruling, leaders of BMI, ASCAP and NSAI issued the following statements:

“While we hoped the DOJ would accept Judge Stanton’s decision, we are not surprised it chose to file an appeal,” says BMI President & CEO Mike O’Neill. “It is unfortunate that the DOJ continues to fight for an interpretation of BMI’s consent decree that is at odds with hundreds of thousands of songwriters and composers, the country’s two largest performing rights organizations, numerous publishers and members of the music community, members of Congress, a U.S. Governor, the U.S. Copyright Office and, in Judge Stanton, a federal judge. We believe Judge Stanton’s decision is correct and look forward to defending our position in the Court of Appeals for the Second Circuit.”

“The Second Circuit’s ruling in this case will affect the rights of more than a million American songwriters and composers, thousands of whom have expressed strong opposition to the DOJ’s position, and we are hopeful the Court will affirm Judge Stanton’s decision,” said ASCAP CEO Beth Matthews. “ASCAP looks forward to resolution of this matter as we continue to advocate for modernizing the consent decrees for today’s world.”

“I am disappointed by the Department of Justice’s decision to further pursue their unjust and irresponsible efforts to damage the livelihood of the American songwriter,” said NSAI President and songwriter Lee Thomas Miller. “I find it unconscionable that they will continue to attack us in pursuit of something that will only further help the streaming companies who are already destroying us by means of outdated federal laws. NSAI will fight this appeal as vigorously as we fought their unlawful, original ruling. We also stand firm on the assertion that the entire system is in dire need of reform. Songs are vital to every part of our culture and they DO NOT write themselves.”