Incoming Trump Administration DOJ officials have to deal with the mess that revolving door Silicon Valley lawyers left over at the antitrust division: A constitutional challenge to the 100% licensing rule forced on songwriters, and all those damn feral cats that Litigation Section III was feeding. According to career staff at DOJ ATR LIT SECT III cat nicknames (from front to back): Google, Public Knowledge, Mic-Coalition, NAB, Spotify, Pandora, American Restaurant Association, Darth Vader, Satan, Johanna Shelton, and Snookums.
The most important fight for songwriters is proceeding. SONA (Songwriters of North America) has responded to the DOJ motion to dismiss, with a motion to proceed.
As reported by Billboard:
“No one knows whether the Department of Justice under the Trump administration will alter its approach to the antitrust consent decrees that essentially regulate the collection societies ASCAP and BMI, but the legal fight against the Justice Department’s June 2016 decision on “100 percent licensing” is proceeding.”
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The importance of the constitutional arguments can not be overstated. The results of this lawsuit will be very important to everyone, not just songwriters. The lawsuit challenges the DOJ regulations specifically for violation of the 5th amendment on “takings.” But other important issues are at stake. For instance the DOJ essentially used a “time machine” to make an end run around already existing private contracts (“the consent decrees always required 100% licensing, this is just a clarification” ). This would seem to violate constitutional prohibitions against laws or rule making that makes previously legal activity illegal after the fact. The DOJ also appears to have violated the Administrative Procedures Act when they enacted this new rule. And never mind that no one can seem to figure out when songwriters not-yet-born (“temporary” ASCAP consent decree dates from 1941) got their due process!