Guest Post by Stephen Carlisle: ASCAP and the Terrible, Horrible, No Good, Very Bad DOJ Decision That’s Going to Create Chaos in the Music Industry

Professor Stephen Carlisle gives us a point by point refutation of the DOJ’s astroturf position on 100% licensing.

via Guest Post by Stephen Carlisle: ASCAP and the Terrible, Horrible, No Good, Very Bad DOJ Decision That’s Going to Create Chaos in the Music Industry — MUSIC • TECHNOLOGY • POLICY

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?

Read the post on

Stephen Carlisle: Court Of Appeals Re-Writes the Copyright Act for pre-72 Artists

On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo. 1

The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York. 2 Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as “not You Tube,” 3 makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free. 4

If I might steal a page from the Electronic Frontier Foundation, the decision is “dangerous” in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the “plain meaning” of a statute.

In sum, the Court:

  • Ruled that even though “Pre-1972 recordings have never been covered by the federal copyright” 5 they nevertheless are covered by federal copyright for the purposes of notice and takedown.
  • Ruled the “safe harbor” provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
  • Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
  • Called the notice and takedown system “an augmentation of rights of copyright owners, 6 but when challenged on this position by an amicus curae that the system “shortchanged” copyright owners, contradicts itself and says “we have no way of knowing.” 7
  • Says workers at Vimeo can’t be held responsible for knowing when something is infringing because they are not “an expert in music or the law of copyright.” 8
  • Examples of Vimeo employees encouraging users to upload infringing content “cannot support a finding of…generalized encouragement of infringement.” 9

So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process.

Read Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act on