The top-to-bottom review of roughly 1,300 consent decrees, including the agreements covering how ASCAP and BMI music is licensed to radio, continues in the Dept. of Justice’s Antitrust Division. The potential disruption of the music marketplace has put the performance rights organizations’ decrees under extra scrutiny on Capitol Hill, where Assistant Attorney General Makan Delrahim told members of a House oversight committee this week that DOJ attorneys have started collecting feedback – including from the radio industry.
“We have begun meeting with every interested party from wine shops to restaurant and hotel owners to broadcasters and musicians and songwriters,” Delrahim told a House Judiciary subcommittee Wednesday. “We have not made any conclusions of what the outcome of that review should be. But we will be carefully looking at it and consulting with you.”
Rep. Jerrold Nadler (D-NY), who will rise from Ranking Member to Judiciary Committee chair when the Democrats take control of the House next month, told Delrahim that lawmakers fear whatever steps DOJ takes may undo some of the long sought after benefits songwriters and other music creators finally secured when the Music Modernization Act (S. 2823) was signed into law in October. The sweeping revision to music copyright law including such provisions as requiring music users to pay royalties on songs recorded prior to Feb. 1972. “It is very important to me that this law—which was strongly supported by virtually all stakeholders—is not undermined by abrupt changes in enforcement policy with respect to the ASCAP and BMI consent decrees that may disrupt benefits to songwriters, copyright owners, music licensees, and consumers, particularly without an alternative framework in place,” Nadler said.
Delrahim tried to allay such worries. “We share in your concern about any kind of a disrupted effect it would have on digital music rights as well as other folks who use and appreciate music,” he testified.
The Music Modernization Act requires the DOJ to alert Capitol Hill of its plans at least 90 days before it takes any steps in federal court to terminate the decrees, including whatever information it has collected about the impact of such a move. Outgoing subcommittee chair Tom Marino (R-PA) suggested the DOJ form a joint task force with Congress to jointly reach their conclusions before any proposal is made. But Delrahim demurred on joining hands, and suggested the DOJ’s review is moving toward some sort of update to the ASCAP-BMI consent decrees. “We will be glad to work with you and make sure you have the proper background and technical support for an alternative solution as we go forward with this process,” he pledged.
That led Marino to issue a thinly-veiled warning not to “pull the rug out” from songwriters, saying Congress spent a lot of time working on music copyright issues and wouldn’t be keen to see something that would “disrupt” musicians.
It was a message received. “We share your concern on this front,” Delrahim replied.
Delrahim first dropped the bombshell announcement in March that the DOJ would be examining the decades-old ASCAP and BMI consent decrees as part of the wider review of the agreements, calling the current state of music copyright law “a mess.”