Stephen Carlisle: You Can’t Make This Stuff Up! The Department of Justice v. ASCAP

Seems like very recently, June 24, 2016 to be exact, I posted about how the 2nd Circuit Court of Appeals ruled that despite there being no language that appeared in any statute, any congressional history, and any opinion of the U.S. Copyright Office, somehow section 301 of the Copyright Act didn’t really say what it plainly said. 1 In other words, they just made it up.

Well, sad to say, they’re at it again, except this time, it’s the U.S. Department of Justice.

At issue are ASCAP and BMI and the consent judgements 2 entered into with the U.S. Department of Justice way back in 1941. ASCAP and BMI are “performing rights societies” (PRO’s) that collectively license musical compositions for public performance. As Forbes Magazine explains:

“Each songwriter belongs to a PRO. That PRO is responsible for collecting royalties on the songwriter’s behalf when a composition is licensed, including licenses for digital stream services, use in public places, on radio stations, TV shows, etc. When a song has more than one writer, it’s common for PROs to share administration rights to the song specific to their individual writer member, meaning each party must license the song to be used on radio or offered to a digital music company for performance rights licensing. For example, a song with three co-writers might be equally administered by BMI, ASCAP and SESAC depending on the PRO affiliation of the writers.” 3

The benefit of this is that anyone who performs a lot of songs (say a radio station) has the cost and complexity of licensing music greatly reduced. Imagine if a radio station had to negotiate with each and every songwriter before they could play the songs! This should be a good thing, right?

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