Department Of Justice Should Drop 100% Licensing Push
A hotly contested and lawsuit-inducing issue from the start, the time has come for the Department Of Justice to ditch its push for a 100% licensing rule on songwriters particularly since most of the lawyers working on the issue have since abandoned it.
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Guest post from David Lowery of The Trichordist
Now that most of the DOJ lawyers who pushed the 100% licensing rule on songwriters are gone, who’s gonna deal with all those feral cats that former Acting Assistant Attorney General Renata Hesse was feeding?
Last year, in what can only be described as an elaborate Kabuki, a small group of DOJ lawyers led by a former Google attorney, took up a question that no one except Google was asking: Do the DOJ consent decrees that govern songwriter public performance licenses require a songwriter to license 100% of the song or does each songwriter “fractionally” license their own share?
(How 100% licensing benefits Google)
The simple and obvious answer is, no. For 70+ years songwriters have been governed by these same consent decrees, and during that time songwriters have licensed fractionally. The DOJ and the federal courts that supervised this process were clearly aware that this was the practice and they didn’t object. In fact many of the opinions from the courts and DOJ documents explicitly reference and require the practice of fractional licensing.
Yet last summer this small group of lawyers “answered” the question that no one was asking. They in effect said “yes in fact the consent decrees have always required 100% licensing.” Ok…then why has the DOJ been involved in the business of fractional licensing for the last 70+ years?
There are only two conclusions:
For the last 70 years the consent decrees were improperly administered by dozens of really sharp DOJ attorneys and federal judges, but this new crew is smarter than all of them combined.
or
This was a political decision designed to benefit a favored corporation. Or in the popular vernacular: corruption.
What do you think?
Fortunately BMI and SONA (Songwriters of North America) separately sued the DOJ (two different and distinct legal complaints against 100% licensing). In mid September a federal judge considered BMI’s complaint and ruled against the DOJ. However a few days after the presidential election the lame duck DOJ antitrust division appealed the ruling. I suppose this was timed to come after the election when popular songwriters were no longer needed on the election trail. Right? Perfect time to twist the knife!
The status of the SONA lawsuit is unclear, but last I heard the DOJ were on the books as still fighting it.
But honestly it’s kind of hard to tell. If you go to the DOJ Antitrust website there are animated gifs of tumbleweeds going across the page accompanied by wind and yipping coyote sound effects. A hobo camp has been set up on the FAQ page and someone needs to deal with all those feral cats that former Assistant AG Renata Hesse was feeding.
Regardless, it’s time. Time to shut this sucker down. Virtually all the 100% licensing lawyers are gone. Probably off to cash in their chips in the Googley parts of the private sector. The DOJ should drop the appeal, settle the SONA lawsuit, and give up the 100% licensing push. Continuing this ridiculous fight only makes the DOJ look petty, corrupt and stupid. Especially with the very real, life or death legal questions face the DOJ these days.
