The passing of the Music Modernization Act, in 2018 created momentum for more transformation within the Music Industry. Once the Act was passed, with a strong desire to continue the forward progression of change, ASCAP and BMI began to call for assessment of the “consent decrees”. ASCAP and BMI recognized the need to review the decrees long ago; however, as with all amendments, there are always pros and cons. No one can argue that reform is needed within the industry; nonetheless, as the decrees are reviewed, the impact of the entire music marketplace is being heavily weighed.
The Us Department of Justice (DOJ) created the “consent decrees” in order to prevent any monopolistic movements within the music publishing industry. Despite their creation in 1941, these same “consent decrees” have continued to govern the Performing Rights Organizations (PROs) with very few updates. ASCAP and BMI may be competitors, but they have banded together requesting new legislation. In February, Billboard shared the complete letter from the two PROs CEOs. [3] According to the open letter from ASCAP CEO Elizabeth Matthews and BMI President and CEO Mike O'Neill they are requesting that the DOJ replace the current decrees with a new document that has four key provisions:
· Allow music users to gain automatic access to their catalogs.
· Retain the recently updated rate court process, which was changed by the Music
Modernization Act to institute a more favorable digital royalty rate-setting standard and allows for rate court proceedings to be randomly assigned to different judge instead of falling to a single judge.
· Allow ASCAP and BMI members to remove a portion of their catalog and strike
direct licensing deals with digital music services.
· Preserve the current forms of music licenses such as the adjustable fee blanket
license and the per-program license.
Both ASCAP and BMI claim that reform would favor songwriters and publishers, but there are others who debate that fact. Over the decades, the decrees have allowed a system of checks and balances. Even though some view them as antiquated, the fear that pandemonium could evolve should the decrees be eliminated or drastically modified by some is very real. Regardless of the age of the laws, all agree that the “consent decrees” created opportunities for evolving music platforms thus generating prospects for all levels of the industry at the same time as ensuring equal payment for composers and publishers at all stages of their career. Even though they review adjustments to the decrees as necessary, ASCAP and BMI also have concerns with some of the possible changes. At the tail end of President Barack Obama's administration, the DOJ sought to institute a new interpretation of the consent decrees that would have required 100 percent licensing.[7] If 100 percent licensing were to be a revision within the decrees both BMI and ASCAP, would be forced to license a song even if they only represented a small percentage of the song's copyright which is not something they see as beneficial.[7] Others concerned with the impact of change are also making public statements in an effort to make their position known. The Future of Music Coalition notes in their comments on the topic that broadcasting, AM/FM or digital, would have been unlikely to even get off the ground without the decrees.[5] With that fact in mind, broadcasters, streaming services, restaurants, retailers and other music proprietors with interests in the music marketplace, are advising caution and attentiveness when modifying the existing decrees which have given the industry stability.
With the Music Industry financial reports continuing to confirm that revenues are remaining on the rise, it is true that the industry is currently stable. The continual rise in profits and distribution of the proceeds is the rational behind the DOJ willingness to review of the decrees. There is no denying the revolutionary changes that streaming has brought to the music industry. Some say that streaming not only revolutionized the industry, it saved it. Streaming, ever emerging platforms, continual advancements of social media and endless growth of the internet has created a new environment for all players, large and small, within the industry. With the new limitless opportunities that did not exist when the consent decrees were written, it is clear that the need for review can’t be denied.
The DOJ’s review of the decrees is an opportunity to focus on concerns that exist within the current status of the music industry. Despite the different opinions on how the decrees should be changed, there’s agreement that the old rules need to be replaced by laws that would govern and reflect the realities of today’s music industry. Understanding the need for fair compensation and robust protection for songwriters, as well as identifying with the importance of the functions of ASCAP and BMI which serves the needs of the creators while maintaining a balance, is in the best interest for all. As the Music Industry continues to evolve and modern technologies continue to develop, discussions will definitely continue to ensue; however, for now, all key players will wait and watch for the outcome of the DOJ review.
Works Sited
1. “ANTITRUST CONSENT DECREE REVIEW - ASCAP and BMI 2019.” The United States Department of Justice, US Department of Justice, 19 June 2019,
2. Aswad, Jem. “ASCAP, BMI Submit Final Arguments to DOJ to Modernize 'Outdated' Consent Decrees.” Variety, Variety Media, LLC, 9 Aug. 2019, variety.com/2019/biz/news/ascap-bmi-final-arguments-to-doj-outdated-consent-decrees-1203298222/.
3. Christman, Ed. “ASCAP and BMI Call On DOJ to Replace Consent Decrees: Open Letter.” Billboard, Billboard Is a Subsidiary of Prometheus Global Media, LLC., 28 Feb. 2019, www.billboard.com/articles/business/8500472/ascap-bmi-open-letter-doj-consent-decrees-regulation.
4. Christman, Ed. “Music User Groups Warn DOJ Abandoning Consent Decrees 'Would Be a Public Policy Error of the Highest Order'.” Billboard, Billboard Is a Subsidiary of Prometheus Global Media, LLC., 13 Aug. 2019, www.billboard.com/articles/business/publishing/8527241/nab-dima-justice-department-consent-decrees-ascap-bmi-comments.
5. “Future of Music Coalition.” FMC Comments on Consent Decree Review | Future of Music Coalition, The Future of Music Coalition, 2019, futureofmusic.org/filing/fmc-comments-consent-decree-review.
6. Hoffman, Karen, and Kenneth Schwartz. “Antitrust Division Reviews the ASCAP and BMI Consent Decrees, Creating the Possibility for Large Scale Change in the Music Industry.” New York Law Journal, ALM Media Properties, LLC., 8 July 2019, www.law.com/newyorklawjournal/2019/07/08/antitrust-division-reviews-the-ascap-and-bmi-consent-decrees-creating-the-possibility-for-large-scale-change-in-the-music-industry/?slreturn=20190725123324.
7. Rau, Nate. “Change in Federal Music Licensing Rules Could Be Big Win for Songwriters, Publishers.” The Tennessean, Nashville Tennessean Part of USA Today Network, 1 Mar. 2019, www.tennessean.com/story/money/2019/02/28/ascap-bmi-music-licensing-rules-consent-decree/3017171002/.
8. Resnikoff, Paul. “The DOJ's Consent Decrees Might Get Lifted After 78 Years - Here's a Statement from the CEOs of ASCAP and BMI.” Digital Music News, Digital Music News, 1 Mar. 2019, www.digitalmusicnews.com/2019/02/28/consent-decree-ascap-bmi/.