Department of Justice Review of the ASCAP and BMI Consent Decrees
What You Need to Know: On June 5, 2019 the Department of Justice announced that it opened a review of its consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), the two largest performing rights organizations (PROs) in the United States. Together, ASCAP and BMI are responsible for licensing the public performance rights of 90 percent of American songwriters. The consent decrees allow ASCAP and BMI to operate at a high percentage of market share in order to provide efficiencies to music licensees and songwriters. In exchange for allowing ASCAP and BMI to operate with market dominance, the decrees provide protection from anti-competitive behavior toward songwriters along with music licensees. The music licensing industry has developed around the decrees and the efficiencies and protections they provide.
What Happened: In early 2021, the DOJ closed the review of the Consent Decrees. In doing so, the DOJ stated that “[a]ntitrust law serves as a crucial backstop when market conditions become distorted or when industry actors attempt to stifle the free and full exchange of goods.” When MAC submitted a Joint Comment with Songwriters of North America in 2019, our goal was to achieve this result, and we are pleased that the line has been held.
MAC’s Perspective: Because of the significant market power held by ASCAP and BMI, the consent decrees remain vital to protect creators and innovation within the music industry, and especially important to protect independent and emerging creators who are the future of the industry. Changes to these longstanding decrees would have created chaos in the industry and hurt individual songwriters. The DOJ stated that the Consent Decrees should be reviewed every five years, and MAC will continue to monitor and advocate for the needed protections they provide.
“The Epic Story Of A Grammy Winner, $204,613 – And A Legal Battle With Ramifications For Songwriters Everywhere,” Music Business Worldwide, October 21, 2019