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ASCAP President Paul Williams
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What Songwriters Need To know About The DOJ's Review Of Consent Decrees

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The Recording Academy filed comments with the Department Of Justice on their ASCAP and BMI Consent Decrees – here's what it means for putting money in songwriters' pockets
Nate Hertweck
Advocacy
Aug 15, 2019 - 4:34 pm

"The goal of the antitrust laws is to protect economic freedom and opportunity by promoting free and fair competition in the marketplace. The decades-old consent decrees now have the opposite effect." –from Comments of the Recording Academy on review of the ASCAP and BMI consent decrees, Conversations In Advocacy #62

For more than 75 years (!),consent decrees have governed the process by which performing rights organizations ASCAP and BMI license rights to publicly perform music. What does this mean, exactly? Despite seismic changes the music industry has undergone in seven-plus decades, musicians are compensated for public performance under the same constraints as they were when Franklin D. Roosevelt was president. Does that make sense in an era dominated by large digital music services, and not record players?

That’s just what the Department Of Justice intends to figure out, announcing earlier this summer their Antitrust Division will review the consent decrees with ASCAP and BMI. In the spirit of urging the DOJ to update the policies to reflect the modern music and technology ecosystem, the Recording Academy has now officially filed comments expressing its views and concerns.

The extensive comments question the utility of the consent decrees in the 21st century, which now benefit the world’s largest and most profitable companies at the expense of fair market pay of individual songwriters. Basically, the evolution of the music ecosystem over the last 75 years has diminished the effectiveness of these consent decrees to help songwriters earn what they deserve.

The Academy worked closely with key stakeholders, including ASCAP and BMI, in drafting the comments to reflect the needs of its songwriter members. While comments from other key stakeholders were filed, the DOJ has yet to publically release any comments.  

In the meantime, the Recording Academy stands with the PROs and the music community in its optimism that the DOJ's Antitrust Division will recognize the need to bring the consent decrees into the 21st century and ensure musicians are properly compensated when their hard work is performed in public. Recently, Assistant Attorney General for the Antitrust Division Makan Delrahim addressed exactly why the consent decrees require a fresh look.

"The ASCAP and BMI decrees have been in existence in some form for over seventy-five years and have effectively regulated how musicians are compensated for the public performance of their musical creations," said Delrahim. "There have been many changes in the music industry during this time, and the needs of music creators and music users have continued to evolve.  It is important for the Division to reassess periodically whether these decrees continue to serve the American consumer and whether they should be changed to achieve greater efficiency and enhance competition in light of innovations in the industry."

This issue will be a top conversation point at the upcoming District Advocate day on Oct. 2. Led by the first-ever District Advocate Ambassador, two-time GRAMMY winner Jason Mraz, the event marks the largest grassroots movement for music advocacy of the year. Recording Academy members will be connected with their member of Congress in hundreds of districts across the country to discuss key issues affecting music makers, including encouraging the DOJ to ensure fair compensation for songwriters during its review of consent decrees. Registration for members and non-members is now open.

By staying vigilant for causes like this that have very real bearing on how music makers are paid for their hard work and creation of intellectual property, the Recording Academy and its members lead the fight for creators' rights year-round in Washington and in local music communities across the nation. As the Antitrust Division reconsiders these long-outdated consent decrees, the Academy hopes its comments and the comments of those stakeholders affected by their decision are taken into the serious account they deserve. After all, a lot has changed in 75 years.

Be A District Advocate: Stand Up and Support Music Creators' Rights

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Assistant Atorney General Makan Delrahim

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ASCAP and BMI Consent Decrees Debate Discussed In Senate Judiciary Hearing

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As stakeholders' comments on consent decrees are reviewed by DOJ, Assistant Attorney General Makan Delrahim weighs in
Nate Hertweck
Advocacy
Sep 18, 2019 - 3:35 pm

At yesterday's Senate Judiciary Hearing, a number of antitrust issues were raised, but the Department Of Justice's ongoing review of the ASCAP and BMI consent decrees were center stage for music creators. The consent decrees, which govern the process by which the two performing rights organizations license rights to publicly perform music, have stayed the same for nearly 80 years while the industry around them has changed drastically. The DOJ’s review has led to significant interest from stakeholders affected by the consent decrees, who have weighed in with hundreds of comments. And Congress has noticed.

And, following the passage of Music Modernization Act last October, Congress might have more of a say in the future of the consent decrees.  The Music Modernization Act contained a reporting requirement instructing the DOJ to inform the Senate and House Judiciary Committees of any planned actions affecting the ASCAP and BMI consent decrees. 

During yesterday's hearing, Sen. Patrick Leahy (D-Vt.) asked Assistant Attorney General Makan Delrahim, one of the panel’s two witnesses, if the DOJ had complied with the Music Modernization Act ahead of their review of the music decrees. Delrahim reassured the committee that they've given reasonable advance notice to both the House and Senate committees before opening the matter to public comment, and pledged to keep lawmakers informed of any further action or decision.

Delrahim also explained the reasoning behind the agency’s review of the ASCAP and BMI consent decrees, the process his department is undertaking, and a rough timeline on when to expect next steps. The Assistant Attorney General, who served as keynote speaker during GRAMMYs on the Hill in April, did not give any indication on the outcome of the review.

Everyone from songwriters to publishers to non-music trade groups to small town venues have submitted comments for consideration. The Recording Academy spoke up on behalf of the thousands of songwriters represented by its membership, urging the DOJ to keep its focus on promoting competition through fair compensation.

"The consent decrees, which were initially put in place to promote competition, now constrain competition," the Academy's comments read. "ASCAP and BMI do not have the ability to experiment and innovate with new kinds of licenses that meet the needs of different customers. Accordingly, the outcome of any review of the consent decrees governing ASCAP and BMI should be less regulation, not more."

As the DOJ considers perspectives from all affected by consent decrees, the Recording Academy's comments also advise them to, "Pursue an outcome that provides every songwriter with the opportunity to secure compensation for their work in a fair marketplace,"

The hearing went on to cover other topics relevant to the music industry, including issues surround the ticketing marketplace, and with District Advocate day right around the corner on Oct. 2, music makers are becoming more involved in the outcome of their lawmakers' moves. For instance, with the CASE Act moving closer and closer to the president's desk and the long overdue need for Congress to pass radio performance rights looming, can the momentum of the Music Modernization Act continue to fill the sails of change to more outdated music policy? If yesterday's hearing is any indication, the answer is on the way soon.

Let Your Representatives Know You Stand In Support Of Music Creators' Rights

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U.S. Department Of Justice To Review ASCAP & BMI Consent Decrees

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After 75 years, the DOJ plans to take a modern look at the consent decrees governing how the PROs compensate songwriters for public performances
Nate Hertweck
Advocacy
Jun 7, 2019 - 3:34 pm

“On behalf of all the music creators hindered by decades old consent decrees, the Recording Academy supports the DOJ and Makan Delrahim for initiating this review." –Daryl Friedman, Conversations In Advocacy #56

On June 5, the U.S. Department Of Justice announced it will do a thorough review of the ASCAP and BMI consent decrees to determine if they should be modified, maintained or eliminated. These consent decrees have been in place since the 1940s and still govern how the performing rights organizations operate in 2019. The Recording Academy was quick to voice support for this review of the  consent decrees.

“On behalf of all the music creators hindered by decades old consent decrees, the Recording Academy supports the DOJ and Makan Delrahim for initiating this review," said Daryl Friedman, Recording Academy Chief Industry, Government and Member Relations Officer. In April, Delrahim joined the Academy during GRAMMYs on the Hill to discuss the changes in the music ecosystem, and we look forward to continuing that conversation with the DOJ to ensure a future with more equity for our songwriter members.”

Delrahim, the assistant attorney for the antitrust division, also spoke to the importance of revisiting the consent decrees in light of the evolving industry.

"The ASCAP and BMI decrees have been in existence in some form for over seventy-five years and have effectively regulated how musicians are compensated for the public performance of their musical creations," Delrahim said in a statement. "There have been many changes in the music industry during this time, and the needs of music creators and music users have continued to evolve. It is important for the Division to reassess periodically whether these decrees continue to serve the American consumer and whether they should be changed to achieve greater efficiency and enhance competition in light of innovations in the industry."  

Several organizations added their voices of support for the review, including ASCAP, BMI, The National Music Publishers Association and The Nashville Songwriters Association International. The move also met opposition from the MIC Coalition, made up of various trade groups of music licensees such as the National Association of Broadcasters (NAB), who voiced their support of keeping the decrees as-is.

The DOJ also outlined a number of questions it will explore, and also called for public comments, setting a deadline of July 10 for any interested parties to provide opinions or information.

How It Really Works: Songwriter Sam Barsh On Success In The Streaming Age

The FBI seal displayed outside FBI headquarters in Washington, D.C.

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Next Steps For PROs After BMI's Consent Decree Victory

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After time expired for an appeal of BMI's fractional licensing victory, new remarks from Justice Department antitrust chief have performing rights organizations looking ahead
Philip Merrill
Advocacy
Apr 5, 2018 - 10:10 am

Unlike the music business, competition between player-piano roll manufacturers or buggy whip makers has really died down. But one thing they all have in common is that their competitive marketplace is shaped and controlled by the same consent decrees with the Department of Justice.

"The way music is licensed has been governed by these consent decrees since 1941," said Justice Department Assistant Attorney General Makan Delrahim, who oversees the agency's antitrust division. "So 77 years of a consent decree, rates being set by a judge in rate court as opposed to free market competition … we are taking a look at that."

Speaking at Vanderbilt Law School on March 27, Delrahim described his department's present rate of progress, having reviewed two-thirds of the Justice Department's 1,300 consent decrees still in force.

"As public agencies we need to take a look and see if those consent decrees are still relevant in the marketplace," he said.

Delrahim wants to ensure that his agency's designated role enforcing U.S. laws is not sidetracked by becoming a mini-regulator or micromanager. Last month, the deadline for appeal expired on the DOJ's courtroom loss to BMI without action being taken, a hopeful sign the department is stepping back from that micromanager sideline. In line with such hopefulness, BMI President/CEO Michael O'Neill wrote a recent Billboard op-ed addressing the question, "So where do we go from here?"

"We've never been more optimistic about the future of music than we are now," said O'Neill, outlining three broad areas for continued positive change in the music marketplace.

One of the areas is updated copyright and music licensing reform, an area where the Recording Academy's continuous efforts will be on full display  April 18–19 during GRAMMYs on the Hill when recent GRAMMY winners, nominees and other music creators meet directly with lawmakers on Capitol Hill.

Another area ahead is for performing rights organizations to spread into related business by licensing additional rights, which seems ripe for future developments as the internet continues to spawn new formats and digital experiences.

And perhaps the most exciting and paramount of O'Neill's future areas is what he describes as "insight and transparency into the licensing process." There is more to this than meets the eye. The fundamental level O'Neill emphasizes is BMI's database collaboration with ASCAP.

"The intention is for this to be a vital asset to assist radio stations and other businesses in assessing their music needs, while providing greater insight and transparency into the licensing process," he said.

A future where the creative catalog serves licensees while treating licensors fairly is a dream worth making into reality, and a platform for futures we can't hope to imagine yet.

Perhaps the problem to be solved with optimism is balancing the need for patience with staying proactive daily. With unprecedented music community unity on copyright reform, thousands of professionals who care are striving to achieve a legal and regulatory environment suited for innovations ahead.

Willing Buyer/Willing Seller Standards Will Help Build A Sustainable Music Economy

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Thanksgiving: 4 Dinner-Friendly Music Advocacy Topics

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So, you want to talk politics this Thanksgiving? Learn how bipartisan harmony can reign over the dinner table when sticking to the topic of music creators' rights
Philip Merrill
Advocacy
Nov 22, 2017 - 12:16 pm

Here's something to think about as you sit down with family and friends this Thanksgiving: A Nov. 21 poll reveals most Americans hope to avoid talking about partisan politics in between helpings of turkey and all the fixings. 

Of course, there's nothing worse than an argument at the dinner table, let alone a holiday gathering. However, if you feel the need to get political, there is one issue that will keep you in the bipartisan-friendly zone: music creators' rights. 

With that in mind, here are four safe music-related conversation starters that you can feel safe bringing up as you pass the stuffing.

1. Did you know recording artists don't get paid for their music on the radio? 

Royalty calculations can get complicated but zero is simple, and that is exactly what recording artists in the U.S. receive in music royalties each time their music is played on the radio. "Terrestrial radio play in the United Kingdom, the Beatles or the Beach Boys or anybody gets a royalty; in the United States, they don't," was how Rep. Darrell Issa (R-Calif.) summed it up. He is just one of the many co-sponsors supporting H.R. 1836, the Fair Play Fair Pay Act of 2017, which is also designed to compensate the music creators "behind-the-scenes," including producers, background singers and vocalists.

2. Did you know that songwriter pay is still regulated by laws dating back to the 1940s? 

Performing rights organizations ASCAP and BMI operate under Department of Justice consent decrees that began in 1941. The DOJ's recent review further complicated what was already an uncertain and willfully blind system. Digital streaming royalties could also be simplified if a uniform approach governed all forms of music distribution.

3. Did you know it's up to the artists and songwriters to police the internet for copyright violations of their own works?

Maria Schneider is a modern jazz great whose artistry is always front-and-center, unless she is busy playing Whack-A-Mole on the hunt for infringing copies of her work on the internet, as she has testified about before Congress on behalf of the Recording Academy. T Bone Burnett more recently addressed a video to the Copyright Office explaining how the legal "safe harbor" granted to internet hosts under the Digital Millennium Copyright Act is broken for artists. Re-piracy of already identified works repopulating the internet after take downs is a huge problem. Better anti-piracy enforcement by ISPs and social platforms is certainly a part of the solution.

4. Did you know music producers are the only music creators without federal copyright protection?

Under U.S. copyright law, producers of audio recordings get zero mention. "As a lover of music and a self-proclaimed songwriter, I'm familiar with just how essential producers and engineers are to the music industry," said Rep. Joseph Crowley (D-N.Y.) about H.R. 881, the Allocation for Music Producers or AMP Act. "Composing songs is a team effort, and our AMP Act will ensure that every music professional receives what he or she has earned." The producers of music recordings consistently bring sound compositions to life for artists across all genres. As true stakeholders in the creative process, producers deserve fair protection and acknowledgement.

A Powerful Tool For Music Creators: District Advocate