This is a must read analysis of everything wrong with the DOJ 100% licensing scheme.
“The rule also involves voluntary licensing by the co-owner. To my knowledge, it has never been applied to a government mandated license in copyright, real property or otherwise. (If the DOJ is confident in its position, then I for one would like to see this issue briefed.) I am also not familiar with cases where the license is issued over the objection of the co-owner.”
After a prolonged and expensive process of soliciting public comments on potential betterments in the ASCAP and BMI consent decrees, the Department of Justice has decided to ignore all of the ideas presented and focus on the one thing that is almost guaranteed to destroy the PRO system in the U.S.–adopt the punitive policy of “100% licensing”.
Simply put, 100% licensing refers to the ability of a co-owner of an undivided interest in real property to grant a nonexclusive license to allow a third party to use the whole parcel without the consent (and potentially over the objection) of the co-owners. A co-owner relying on this rule also assumes the obligation of accounting to the co-owner and to not license at a rate that constitutes economic waste of the property.
The Department of Justice seeks to apply this theory to song copyrights through the consent decrees. After all the hopeful aspirations that…
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