When you write a song with another songwriter, do you ask them “Who’s your PRO?” Never, right? If the U.S. government has its way, you better start–because the Department of Justice wants to force ASCAP and BMI to license 100% of any song their affiliated songwriters control any part of, like a government-mandated controlled compositions clause.
Yes, you read that right. Example: You write a song 50/50 with another writer. One of you is ASCAP the other BMI. The U.S. government seems to think that the rule always has been–which we all know is utter and complete bullshit–that ASCAP and BMI could both license 100% of that song. Even though ASCAP and BMI want no part of it and have never done 100% licensing, the U.S. government wants to force them to do it. How would that work?
It can’t possibly work, never was the deal, and will stand the entire songwriter community on its head. This will screw up co-writes, parodies, samples, you name it. It will change everything for the worse. It will be a disaster. It’s all based on a quirky theory of U.S. real estate law applied to copyright that has never been applied to PROs.
It will also create a huge disincentive for anyone outside the U.S. to co-write with a member of ASCAP or BMI.
We’ve all suffered through the U.S. government’s regulation of songwriters. The worst example of this is the regulation of songwriters through the ASCAP and BMI rate courts from antitrust consent decrees that are imposed on songwriters by the Department of Justice. Why? Wait for it…to promote competition. But what is really happening is that the Department of Justice is attempting to change the rules of the road to something manufactured out of thin air and then pretending those new rules were there all along.
Instead, the U.S. government and their consent decrees and hugely expensive rate courts have caused many songwriters to exit ASCAP and BMI for SESAC and Global Music Rights. So why can’t that solve the problem?
Because the U.S. government wants to fix it so that even if you leave ASCAP and BMI, if you write with a songwriter who is a member, then the government will force ASCAP and BMI to license 100% of your song. That’s right–even if you are at a PRO that isn’t subject to government regulation like SESAC or Global Music Rights, then the long hand of the Department of Justice can still take your rights by regulating your co-writer. Don’t we still have a Constitution in this country?
That’s interesting because Google, Pandora and the National Association of Broadcasters formed the MIC Coalition along with the Computer and Communications Industry Association, the Consumer Electronics Association, the Digital Media Association as well as hotel owners, retailers and of course Clear Channel (the absurdly rebranded iHeart). Purpose? To stop artists getting paid for radio play.
But the first official act of the MIC Coalition was to ask a revolving door lawyer in the Department of Justice who previously represented Google to investigate SESAC!
That’s right–companies with trillions of dollars of market capitalization have to have their cronies in the government protect them from songwriters and put SESAC under a consent decree!
Don’t forget that songwriters with Global Music Rights are attempting to withdraw from YouTube on a fractional share basis to renegotiate their YouTube deal or just leave YouTube altogether. Those songwriters will also be affected by this new rule by the U.S. government. If these songwriters co-write with an ASCAP or BMI writer, then the U.S. government will force ASCAP or BMI (or both if its a three-way split) to license the co-write and collect the royalties.
It should not be lost on you that Google is in a battle with songwriters over YouTube and that Google dominates the Obama Administration which explains why there’s never been an antitrust prosecution of Google.
But Google isn’t the only one. Apple is doing it, too. As SONGS CEO Mark Pincus said in a Billboard op-ed :
[I]n a break from industry convention, [Apple Music’s] offer called for 100 percent licensing. This means Apple will accept licenses from a publisher for an entire song, even if the publisher only controls a fraction of it. Though it never has been the custom in music publishing, by copyright law publishers are allowed to issue a 100 percent license and account to the other rights holders owning shares of the work. That’s right: A competitor can license your shares to Apple whether you like it or not. Now, other DSPs are asking for 100 percent licensing as well. What will happen if DSPs accept 100 percent licenses from their largest licensees (who have shares of more songs)? More control to the bigger companies; less control to everyone else.
That’s right–by protecting its cronies in Big Tech, the government is actually destroying competition, not promoting competition. The opposite of what the antitrust laws are supposed to do.
Fortunately, you can make your voices heard on this one. The Department of Justice is asking for public comments on a series of trick questions they have posted on their website which you can read here. David is going to be writing a comment which we will post on The Trichordist later today.
THE DEADLINE IS TODAY!
Write your own comment and tell the DOJ what you think about this latest change in the rules. Here’s the notice from the DOJ website:
All comments should be submitted by electronic mail to ASCAP-BMIemail@example.com by November 20, 2015, and will be posted in their entirety for public review at http://www.justice.gov/atr/ASCAP-BMI-comments-2015. Information that parties wish to keep confidential should not be included in their comments.
We have to stop this latest end run around our rights.