Music Creators Seek Reform of Consent Decree

In his recent testimony before congress, songwriter and president of ASCAP Paul Williams remarked that it was astonishing to realize that he and fellow witness, songwriter Rosanne Cash, were subject to more government regulation than the multi-billion-dollar corporations whose interests were represented in the same hearing.  What Williams was referring to with that remark is the fact that licensing fees for certain public performances of works by composers and songwriters are still predicated on a WWII-era consent decree between ASCAP and the DOJ.  This decree granted a federal judge (aka the “rate court”) the sole right to set rates for these public performances, but for a market that looks nothing like the one we have today.

It is thanks to these outdated licensing terms that we continue to hear from various music composers and writers that, for instance, millions of plays of their songs on a streaming service like Spotify is worth less than a couple-hundred bucks.   And as the songwriters and composers presently lobby for change, we’ll surely be hearing plenty of hew and cry from Pandora, Spotify, and Google.  After all, when these tech companies evangelize new models, innovation, and disruption, they only really mean it if it’s good for their bottom line; so if a half-century-old law or system allows them to exploit someone else’s work in order to add a few million to their own coffers, then “old models” sound just fine. They won’t come out and say “leave the old system in place;” that would be too regressive-sounding and too bluntly honest.  Instead, they’ll try to scare consumers in one way or another that their streaming services will cease to operate or have to adopt new pay models or charge more for access, and so on; but the reality is that while these services dangle cheap and free in front of consumers in the short term, failure to reform the present system may result in higher prices, disenfranchised licensees, and/or decreased diversity in production over the long term.  Meanwhile, there’s no question songwriters and composers are getting pretty well hosed, shackled to an obsolete model from which they can neither effectively opt out nor negotiate within as free agents in a normal supply/demand market.

This matters now because streaming is how consumers want to listen to music, and why wouldn’t we?  If I’m in the mood to listen to a song I haven’t downloaded, I launch Spotify just like anyone else. Who wouldn’t want such on-demand convenience?  And for free?  But our convenience is presently subsidized by the dramatic underpayment of songwriters and composers who are increasingly dependent on revenue from this new way we want to listen to music. At the same time, these creators of the music we love are the folks without any other source of revenue.  They don’t tour, and they don’t sell merchandise.  Elton John is a big damn star and a knight and all that, but I don’t think anyone ever bought a Bernie Taupin tee shirt, if you know what I mean.

Music licensing can be confusing.  There are multiple ways to use music and different rights associated with each use as well as multiple stakeholders with any given track.  Readers will thank me for not attempting to wade too deeply into all the variables; I’d probably get some of it wrong, and it’s not exactly spellbinding.  Suffice to say that the rights associated with the consent decree and its reform are public performance rights covering uses like radio broadcasting, music streaming, live performance by musical artists, and uses in venues like bars, restaurants, and theaters.  Licenses for these types of use are granted automatically upon request, and they are generally bulk licenses covering tens of thousands of songs for a single, annual fee paid to a performing rights organization, commonly called a PRO.

ASCAP was the first PRO (founded in 1914) and is the largest of these organizations, followed by BMI, but in the present landscape, other PROs have emerged that are not subject to the consent decree.  Still, a PRO the size of ASCAP enables hundreds of billions of typical public performances for users through a collective licensing and fee structure that compensates the organization’s membership of composers, songwriters, and publishers.  For instance, the coffee house where I’m writing at the moment has a sign on the door with the logos of the three leading PROs because this place hosts open-mic nights and other live performances, and it has music playing continuously during normal hours.  A little venue like this pays a relatively low licensing fee that provides blanket coverage for this type of public performance, allowing any local musician to come in and play any cover she wants for whatever size crowd will fit in here.  In a similar way, if I wanted to use music incidentally on this blog site, I could get a license with the three major PROs for a few hundred bucks a year and have the use of just about every song in existence.

Without reform of the consent decree, the PROs could see the resignation of major publishers from membership, effectively abandoning collective licensing.  This would mean individual negotiations between publishers and new media services, which would almost certainly increase costs that would be passed on to consumers one way or another and would also create unnecessary burdens for traditional licensees like my local coffee house.  It is not hard to imagine a future in which the full adoption of music streaming wipes out a whole class of professional music creators. After all, nobody can argue that a sustainable market can be built on a model in which “success” in the primary market buys a half-order of groceries once in a while.  And regardless of what the Pandoras etc. may say in defense of the current system, there is simply no way they can promise that a world without professional songwriters and composers will not be a world devoid of the kind of music we’ve been lucky to enjoy so far.

Adding insult to injury, many start-up Internet companies offering music streams as the foundation of their business model are employing stall tactics to avoid paying any licensing fees at all.  The Silicon Valley culture has a long tradition of steal now, apologize and pay something later, and the PROs are seeing this first-hand with various web businesses.  Once the request for a license is made, it has to be granted; but then the PRO requests information about the applicant’s use, audience, etc. in order to set a fee.  ASCAP and the others are seeing a trend in which these companies stall on providing information and, therefore, stall on paying any fees while freely using all the music they want in order to grow their business.  (Man, I’d like to see somebody try that with construction and the cement supply company.  Just once.)  The recourse available to the PRO in this case is federal court, which is costly and time consuming.

Presently, the songwriters, composers, and publishers are proposing certain reforms to congress that release them from this outdated consent decree and enable them to negotiate (still through the PRO) more flexibly in response to current market realities.  For instance, ASCAP proposes shifting cases from the purview of the federal rate court to a more expedited process of private arbitration; and it calls for voluntary rather than compulsory licenses in order to create bundles of works, allowing the PRO to license music more complexly than the all-or-nothing model that exists now.   With these types of reforms, the PROs feel they can negotiate sustainable fees for songwriters and composers while keeping intact the collective licensing paradigm that keeps public performance licensing easy and affordable for tens of millions of users.

© 2014, David Newhoff. All rights reserved.

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27 comments

  • David, another great post. I think somebody stole my Bernie Taupin t-shirt or maybe I just can’t find it.

    Code Red. You have until THIS Wednesday to share your thoughts about pending consent decree revisions. As a fan, not a songwriter, I will be sharing my thoughts on this topic with the DOJ.

    Songwriters are the backbone and the soul of music, without your passion and vision music will stagnate and the wonderful legacy we have enjoyed will fade. It is patently unfair that any worker be deprived of their constitutional right to control the fate of their work and be empowered to decide what their work is worth.

    This link will connect you: http://thetrichordist.com/…/call-to-action-songwriters…/

  • David–
    “a WWII-era consent decree between ASCAP and the DOJ”

    That’s a bit misleading; that decree was vacated ages ago, IIRC. The current decree is from 2001. But even if your complaint is that there’s been a continuing agreement by ASCAP to comply with certain regulations due to its alleged monopolistic practices against radio in the 30’s, it’s not strange to see a long-lived court order floating around. In fact, it’s very common; alimony is an excellent example. It’s not as though the parties can’t ask the court to modify the order if necessary, and the ASCAP order has been modified a number of times due to changed circumstances. The date of the original offense is no argument against the decree.

    “This decree granted a federal judge (aka the “rate court”) the sole right to set rates for these public performance”

    No, that’s not true.

    While the order limits certain types of fee arrangements (e.g. different fees for different, but similarly situated users), it requires ASCAP to set the amount of the fee, at some reasonable level. It’s only if there’s a disagreement as to what’s reasonable that it goes to the court, and then ASCAP need only prove that the fee it asked for was reasonable; only if ASCAP fails at this will the court impose what it determines to be a reasonable fee.

    “This would mean individual negotiations between publishers and new media services, which would almost certainly increase costs that would be passed on to consumers one way or another and would also create unnecessary burdens for traditional licensees like my local coffee house.”

    No, I’d say it’s more likely that due to the transactional costs, independent songwriters would not be able to license their songs to most users, etc. After all, the practical inability of individual songwriters to effectively control their work is what led to ASCAP being formed to begin with. The spectre of increased costs for consumers from a lack of collective licensing is too implausible to take seriously for an instant. Rather, what’s bad for consumers is unreasonable collective licensing — which is exactly what you’re proposing.

    “For instance, ASCAP proposes shifting cases from the purview of the federal rate court to a more expedited process of private arbitration”

    Uh-huh. Binding arbitration is notoriously corrupt. While the parties in this situation would be better suited to it than how it is increasingly used, remember that the expenses to go to court are typically shared by both parties; if the expenses encourage ASCAP to cave on fee negotiations, it’ll tend to have the same effect on their users. Still though, I suppose arbitration could be allowed — provided that the evidentiary record, and judgments, were all made public, and that the arbitrators were picked entirely at random, rather than selected by the parties in any way.

    “and it calls for voluntary rather than compulsory licenses in order to create bundles of works, allowing the PRO to license music more complexly than the all-or-nothing model that exists now”

    So now instead of a simple blanket license — which IIRC was something that the organization came up with, BTW, rather than having had imposed on them — you want to add individual negotiations between publishers and new media services, which would almost certainly increase costs that would be passed on to consumers one way or another and would also create unnecessary burdens for traditional licensees like your local coffee house?

    • Anonymous provides copious amounts of subterfuge in the hope they can obscure the real problem. Typical.

      Simply put, your argument is in favor of the consumer at the expense of the creator. You want unlimited access to content that you can reconfigure and profit from, without consideration for the time, energy and expense it took to create the original work, so that someone else can profit from a cheesy edit.

      You are also defending corporations at the expense of the individual. I’m not referring to David’s coffee shop. Think bigger, much bigger.

      Alimony is a terrible example. There is no connection between the two, unless they’re using a clip from YouTube in the deposition. Besides isn’t binding arbitration the preferred solution in a divorce hearing?

    • “Rather, what’s bad for consumers is unreasonable collective licensing — which is exactly what you’re proposing.”

      Not at all. First, let’s be clear that almost nothing in the digital age is bad for general consumers, who enjoy more free music than they can effectively listen to in a lifetime. For licensees and creators,collective licensing has been mutually beneficial for quite some time, and ASCAP isn’t proposing making it any more burdensome than it has been. Costs should go up to an extent inasmuch as songwriters and composers are getting nothing out of streaming. My point is that sensible reform that would allow more flexibility for the largest PROs may be preferable to the major publishers jumping ship and negotiating individually. That’s not an absolute. It could go differently, but tweaking a model might be better than breaking it. At the end of the day, all I care about personally is that the creators are fairly compensated for works we consumers want and without which there would be no streaming music services.

    • As you say Broadcast media doesn’t actually have a single supplier of its input. The suppliers are tens of 1000s of individuals. In general the broadcasters can’t effectively negotiate that number of agreements, and the suppliers probably don’t want to negotiate with 100s of broadcasters either. So the advent of ASCAP and BMI is inevitable and as a middle man suites both suppliers (who don’t want to negotiate with loads of broadcasters) and broadcaster (who don’t want to have to negotiated with loads of songwriters).

      That said I can’t see why as a supplier taking advantage of what is a central clearinghouse I should be compelled to supply organisations to which I am fundamentally opposed. I should be able to say that I do not agree with the political POV of X and therefor do not want my content to be supplied to them. After all I can say to an investment firm that I don’t want my money invested in armament manufacturers, so why can’t I say that I don’t want my songs or whatever played on a warmongering radio station without forego the advantages of the licensing clearinghouse for the 99% of other orgs that I don’t have problem with. I should also be able to say that I don’t want my content used on the Fox network, or on some digital network either.

  • Digitalrightsactivist–
    “Simply put, your argument is in favor of the consumer at the expense of the creator.”

    Oh no! We certainly wouldn’t want to make arguments in favor of the public.

    “You want unlimited access to content that you can reconfigure and profit from, without consideration for the time, energy and expense it took to create the original work, so that someone else can profit from a cheesy edit.”

    Well, that would certainly be ideal, but for my own part, I recognize that the best realizable outcome for the public seems to require some concessions to creators. Of course, the past 70+ years of songwriting have been pretty amazing even with the consent decree in place. I don’t think that The Beatles, The Ramones, Janis Joplin, Stevie Wonder, or other prominent ASCAP members failed to live up to their potential because of the decree. I doubt that music will get better without it, and the same antitrust concerns that caused the government to go after ASCAP haven’t gone away.

    This is a lot like last year’s Voting Rights Act case that went to the Supreme Court. The Court there said that the restrictions on states that kept them from regulating voting in a racist manner were not needed, because under the restrictions, the states hadn’t put such regulations in place (not because they didn’t try, but because it wasn’t allowed). So the restrictions were lifted, and almost overnight, a bunch of states started rolling out exactly the sorts of restrictions that they never would’ve gotten away with previously.

    If ASCAP is not planning on acting in an unreasonable, or anti-competitive manner, the consent decree can be allowed to stand, since it won’t get in their way. And if they are planning on acting in a way that would violate it, why would it make sense to let them?

    “You are also defending corporations at the expense of the individual.”

    It happens. But remember that the decree is against ASCAP, a corporation, not all individuals or even all individual songwriters.

    “Alimony is a terrible example.”

    You’ve misunderstood. I did not mention it as an analogy, I merely cited it as an example of a court order that can last for many decades, yet can be modified by a court at any time, if either party can show changed circumstances that make it appropriate to do so. The decree is not a strange thing, nor is it something that the courts are ill-equipped to handle. Indeed, they’ve got over seven decades of experience with the decree!

    “Besides isn’t binding arbitration the preferred solution in a divorce hearing?”

    I’m not a family law guy, but my understanding is that mutual agreement and mediation are both preferable, as one would expect in any matter. Arbitration is cheaper than litigation, but it’s a bigger gamble since there’s typically no appeal. Due to that, and due to ever-present concerns about the fairness of arbitrators, I almost never recommend arbitration to anyone. I’d rather trust a judge in a real court.

  • Out as what?

  • Anonymous, you are a freehadist and a troll. You’ve left crumbs everywhere. You are someone who favors disruption over creativity and see the cost of content as some kind of blockade to ‘your’ vision of the future. There are clues that you may be a lawyer and, well, you’re anonymous.

    From an earlier Anonymous comment, using my comments ( William Buckley ) as points of reference:

    “Simply put, your argument is in favor of the consumer at the expense of the creator.” Mr. Buckley

    ‘Oh no! We certainly wouldn’t want to make arguments in favor of the public” Mr. Anonymous
    ( Aren’t songwriters considered the public as well? ) Mr. Buckley

    “You want unlimited access to content that you can reconfigure and profit from, without consideration for the time, energy and expense it took to create the original work, so that someone else can profit from a cheesy edit.” Mr. Buckley

    “Well, that would certainly be ideal,…..” Mr. Anonymous

    “….. but for my own part, I recognize that the best realizable outcome for the public ‘seems to require’ ‘some concessions’ to creators.” Mr. Anonymous

    BTW. ASCAP is a non-profit with operating expenses of 12% and has a board of directors elected by the members > that would be songwriters, who I consider to be individuals and consumers, Mr Anonymous.

  • David–
    “Costs should go up to an extent inasmuch as songwriters and composers are getting nothing out of streaming. … At the end of the day, all I care about personally is that the creators are fairly compensated for works we consumers want and without which there would be no streaming music services.”

    If you’re simply saying that they are not receiving a reasonable amount of compensation, they can take that to the court now, show that it’s not reasonable, and get the rates increased to a reasonable level, all pursuant to the existing consent decree. As I said, there’s no reason to get rid of the decree unless an unreasonable amount of compensation is sought; fair compensation is possible right now.

    John Warr–
    “That said I can’t see why as a supplier taking advantage of what is a central clearinghouse I should be compelled to supply organisations to which I am fundamentally opposed. I should be able to say that I do not agree with the political POV of X and therefor do not want my content to be supplied to them.”

    Great. So what happens when you say that you are fundamentally opposed to providing musical works to radio stations that pay less than 1.5 times the current rate, for example? Your exception would swallow the rule.

    As you’ve agreed, blanket licensing is in the interest of both sides, since it’s impractical for individuals to negotiate individually with every user, and users are apt to ignore individuals that want to negotiate, since it’s almost never worthwhile to do so. The transactional costs are a killer for both. But blanket licensing means blanket licensing; once you start whittling away at it, the advantages of blanket licensing go away again. How the hell is ASCAP, much less anyone else, supposed to keep track of the whims of about a half a million songwriters and composers, which might further vary by individual work, user, or phase of the moon?

    If you don’t want your work used on Fox, you should either be cut out of blanket licensing altogether, so that you can satisfy your desire (and pretty much guarantee that it won’t be used by almost anyone), or you should suck it up and donate whatever money you get from Fox to some organization that opposes them. This is better handled at the level of the songwriter, who can know his own mind and act on it better than an intermediary can.

    Digitalrightsactivist–
    “Anonymous, you are a freehadist and a troll.”

    No, I don’t think that either is correct. I’m not a troll, because I’m interested in having an honest discussion; mere disagreement is not trolling. And I’m not sure what the precise definition of a “freehadist” is, (it’s not on Wikipedia, or Urban Dictionary, or anything), but given that I merely espouse copyright reform as a matter of federal law, I doubt that I am one.

    “You are someone who favors disruption over creativity and see the cost of content as some kind of blockade to ‘your’ vision of the future.”

    Are disruption and creativity at odds? If you mean disruptive innovation, e.g. digital photography destroying the film industry, then sure, I’m in favor of that. Why wouldn’t I be? I think that any sensible businessperson ought to be aware of the danger of it to their business, and the likely inevitability of it, and therefore ought to try to be the one to disrupt their own established business; it’s their best chance at surviving the disruption. I also think that our economy could use some changes to help the losers better cope with the effects of disruption, without actually lessening disruption itself. I suppose that sometimes disruptive innovation could be at odds with creators or performers — for example, movies and television destroyed vaudeville. Air conditioning, interstate highways, better and cheaper air travel, and less discrimination destroyed a way of life for Borscht Belt comedians (not to mention the resorts; it’s amazing to see before and after photos of Grossinger’s). But while we’ve lost something of value, we’ve gained a lot too. While I certainly have a lot of nostalgia for the past, I wouldn’t want to actually go back.

    “There are clues that you may be a lawyer”

    Here’s a good one; I am a lawyer.

    “Aren’t songwriters considered the public as well?”

    Yes. And as members of the public, measures that benefit the public will benefit them as well. As pointed out above, a simple blanket license is good for songwriters, since they’re unlikely to license to anyone otherwise; it’s good for users, since it’s the only reasonable way for them to license these works, and it’s good for the public, since it gets the works in greater circulation, at a low cost, which is important since they’re the ones who ultimately have to pay for it. Since songwriters probably like to listen to music they didn’t write, and probably don’t like to pay a lot, they will benefit from inexpensive listening options just like the rest of the listening public.

    As for the other quotes, what’s your point? I always side with the public interest, and that is to have the greatest number of works created and published, with the fewest, shortest-lived restrictions pertaining to those works. Thus, an ideal world would be one in which authors were as active as possible, but where there were no restrictions. But in the real world, we appear to get more creation and publication by increasing restrictions; so long as there’s a net benefit to the public, that’s fine, if we just try to find the point of greatest net benefit to the public. I don’t see why you’d expect public support for any other alternative (aside from that sometimes people don’t act in their own interests).

    • [Great. So what happens when you say that you are fundamentally opposed to providing musical works to radio stations that pay less than 1.5 times the current rate, for example? Your exception would swallow the rule. ]

      Why not? A writer of novels can choose not to supply a particular publisher if they don’t pay enough. A photographer can similarly choose not to supply a magazine with photos. A poet can choose not to supply Hallmark cards with a poem. What is so fucking special about a song?

    • [once you start whittling away at it, the advantages of blanket licensing go away again. How the hell is ASCAP, much less anyone else, supposed to keep track of the whims of about a half a million songwriters and composers]

      In case you hadn’t heard we’ve got computers. Broadcaster X wants to license a song and songwriter Y registers a blacklist of organizations they are not willing to license to. Should take a fraction of a second to get a YES/NO response. Perhaps to make it easier the songwriter can subscribe to a anti-warmongers list maintained by Pacifists United or whatever. Its just data so the costs should be zero.

    • [If you don’t want your work used on Fox, you should either be cut out of blanket licensing altogether … or you should suck it up and donate whatever money you get from Fox to some organization that opposes them.]

      Why involve some middleman? Direct personal action is always best don’t you think. Besides the political statement “everyone can use this except Fox” is more effective then “No one can use this because of Fox”. Insert Boggie man of choice for Fox.

  • Wouldn’t it be beneficial to the public if you offered your services for free?

  • anon wrote “So what happens when you say that you are fundamentally opposed to providing musical works to radio stations that pay less than 1.5 times the current rate, for example?”

    …except that literally NEVER happens with the status quo. In fact, it’s the exact opposite. The consent decree is an artificial cap on rates that – instead of being a minimum (as it was originally intended) it, in practice, becomes an artificial maximum. All payments are that or (usually) some fraction of the “minimum”.

    and so what if an artist chooses not to participate in personally detrimental business decisions? Isn’t that the exclusive right of the artist, granted in the Constitution? Should you, as a lawyer, be forced by law to do all pro-bono cases? You would sue the government…

  • Anonymous, if in fact you are a lawyer and this is the way you present a case by subverting the conversation, I doubt your success. For example in your rebuttal to my cross examination you chose to answer the easier challenges and omitted the rest.

    Given your tenacity, I highly doubt this is your first rodeo and are unfamiliar with the term “freehadist”. If in fact you are a troll it would be highly unlikely you would admit it. In fact I’ve never seen that happen.

    AudioNomics amplified my comment, which really gets to the heart of the matter: “Should you, as a lawyer, be forced by law to do all pro-bono cases?”. Of course your answer is no. So what makes the work of an artists any less valuable than yours? Why should artists be singled out as not worthy of equitable compensation. Lawyers or any professional set their rates and “consumers” either pay it or you choose whether to take on the client or not.

    If you feel artists aren’t entitled to the same treatment you are an elitest and all your feigned noble comments about the public ring false.

  • Digitalrightsactivist–
    “Define public interest.”

    It’s defined above, in the sentence I wrote starting with “I always side with the public interest.”

    “Wouldn’t it be beneficial to the public if you offered your services for free?”

    Yes, it would. And the state I practice in agrees, expressly encouraging lawyers to do pro bono work. And I agree, and I have done pro bono work. I think it would be great if I didn’t have to charge for my services, just as I think it would be great if authors created works without any need for copyright. But, as I’ve pointed out already, we do not live in such an ideal world. Copyright is not a necessary evil, but if it is a useful one, we should probably have it. Likewise, since I have my own bills to pay, I’m obligated to charge for my services.

    John Warr–
    “What is so fucking special about a song?”

    A bad prior history. ASCAP predates commercial radio. When radio came along, and radio station operators wanted to play music, they entered into licensing arrangements with ASCAP (which was the only such organization at the time). Originally, things were great. But by the late 30’s, ASCAP and the radio industry were at odds. The licensing fees went up, and the fees included a percentage of the station’s income. Finally, in 1940, ASCAP proposed lowering the fees on the stations, but imposing new fees on the networks, which previously hadn’t been asked to pay anything. For a year, the radio industry basically boycotted music that would fall under ASCAP auspices. This is where BMI, the second big rights organization came from. Among the arguments that ASCAP made was that they were entitled to what would amount to higher royalties (when you added the stations and networks together) due to the effects that radio was having on other markets, such as sheet music.

    Ultimately, ASCAP lost. The networks and stations held firm, the public never demanded that ASCAP music be played, and the Department of Justice pursued criminal and civil antitrust litigation against ASCAP. In order to avoid an actual lawsuit, ASCAP voluntarily agreed to abide by certain limits, enforced by a court order. This is the consent decree. The decree wasn’t simply to prevent ASCAP from bullying users; the organization had also acted contrary to the interests of its members, for the benefit of a sort of cartel of songwriters that controlled the organization for their own benefit.

    Amusingly, just as this was wrapping up, ASCAP got into a huge fight with the movie industry, wanting to up fees against the owners of the movie theaters. This time the suit went through, and ASCAP lost again. A highlight from the court’s opinion:

    “Almost every part of the ASCAP structure, almost all of ASCAP’s activities in licensing motion picture theaters, involve a violation of the anti-trust laws.”

    And ASCAP is hardly alone in having been brought to heel. The movie studios got broken up in the 40’s (IIRC), which is why they no longer own their own movie theaters. The big six book publishers got hit just recently for trying to engage in price fixing together with Apple. The Associated Press have been found to have engaged in restraint of trade by trying to control whether newspapers could share information. Copyrights are a limited form of legal monopoly, but they don’t permit copyright holders to go crazy nuts.

    This is why I mentioned the Voting Rights Act; as with the southern states, ASCAP has been a serious offender in the past. Its good behavior since has been due to the shackles put on it. Let it act freely, and there’s no reason to believe it will continue to stay on its good behavior.

    Given that most living songwriters who are ASCAP members have never known an ASCAP that was free to act, and have not had a big problem with it for the last seventy-plus years, the current calls to lift the decree are not based in actual disagreement with it, but in disagreement with the rates set by the court the last time the decree was altered, in 2001. Songwriters ought to just come up with evidence to prove that the current rates are not reasonable, and the court will certainly modify the decree in response. I think that the reason that this isn’t happening is because they’re not interested in reasonable rates, and for that, the decree has to go. I continue to utterly lack sympathy for such a position.

    “In case you hadn’t heard we’ve got computers. Broadcaster X wants to license a song and songwriter Y registers a blacklist of organizations they are not willing to license to.”

    Why are you limiting yourself to just that one criteria? Surely a rightsholder can refuse to license for any reason, or no reason at all, absent external controls. How complicated does this database of yours get when it has to keep track of whether a user still employs that one intern, whose name the rightsholder doesn’t remember, but who gave a funny look and was slow with the bottled water? Because whatever station they work at, they don’t get licensed. And what about if the rightsholder is willing to license, but only if the user makes a suitable offer? They’ll just have to guess at how much to offer, no hints will be provided. And let’s not forget about rightsholders who don’t want to license users on the west coast yet, because their astrologer said it was an inopportune time; that’ll have to go in there too. You can see how this will rapidly spiral out of control.

    A simple blanket license is better for everyone.

    “Why involve some middleman?”

    Well, I suppose we could just institute a statutory compulsory license, with rates set by the Copyright Office, or a CRAP — no wait, it’s done by the CRB now. But that still leaves the problem of distributing the money. Looks like some sort of middleman is nearly unavoidable, especially without a robust registration formality.

    AudioNomics–
    “The consent decree is an artificial cap on rates that – instead of being a minimum (as it was originally intended)”

    News to me. Got something you can show me for that? I just ask because that would be the weirdest thing ever.

    “and so what if an artist chooses not to participate in personally detrimental business decisions? Isn’t that the exclusive right of the artist, granted in the Constitution? ”

    No one is obligated to join ASCAP or BMI. There are other organizations. I don’t recall that SESAC has this.

    Also, the Constitution doesn’t grant authors any sort of copyright; it just says that if Congress decides, at its whim, to grant copyrights, that they must initially be granted to authors. It’s not obligatory. And indeed, songwriters don’t have to join any sort of organization at all, right now. They’re just probably not going to get any licensing for performance though, since no one wants to deal with authors on an individual basis.

    • So what is so special about a song? If what you say is correct back in the 1930s the broadcasters weren’t compelled to use ASCAP licenses, and the songwriters if they thought they were getting shafted by ASCAP could go elsewhere BMI you say. Does your government dictate the price of bread, or drugs? Both commodities that are probable more essential to the public interest than the license fee for a something playing on the radio. If not and its all to do with public interest why not?

  • Will Buckley–
    “in your rebuttal to my cross examination”

    I don’t usually say this, but lol.

    “highly doubt this is your first rodeo and are unfamiliar with the term ‘freehadist’.”

    It’s some sort of slur, clearly. Beyond that, I’d be very hard pressed to actually define it. And as I said, I even went to look it up, and couldn’t find anything. So since you’re the one who brought it out to begin with, perhaps you’d be so good as to provide a definition?

    “‘Should you, as a lawyer, be forced by law to do all pro-bono cases?’. Of course your answer is no.”

    And if you asked me whether the consent decree should set rates to zero, I’d disagree with that as well. But the consent decree doesn’t do that; it sets the rates to whatever amount ASCAP can prove is reasonable. This is hardly the worst price control in the world, and it only came about after some egregious illegal activity. Had ASCAP behaved themselves, the decree would not have arisen. And they didn’t even have the decree imposed on them; they volunteered for it, to avoid any actual punishment.

    BTW, lawyers are subject to price controls too: we’re not allowed to charge excessive fees, we’re not able to enforce unreasonable fees, the percentages for contingency fees are capped, etc. So I still wouldn’t characterize myself as being hypocritical here.

    “Why should artists be singled out as not worthy of equitable compensation.”

    Again, the decree itself says that they are absolutely entitled to a reasonable fee, and that if ASCAP and users are unable to agree as to what’s reasonable, the court will decide what’s reasonable, based on the evidence presented to it. So artists who choose to have ASCAP represent them are getting equitable compensation under the decree now. And if they disagree, they really need to do little other than provide sufficient evidence to make their case. And of course, they can decide not to have ASCAP represent them, but there’s quite a bit of chutzpah in voluntarily signing on with an organization that almost certainly was subject to the decree before any current songwriter became a member, and then griping about it.

    This is why I’m concerned about the termination of the decree; it would only make sense if fees were sought which were unreasonable, or which could not be shown to be reasonable. Neither of these are good things.

    “Lawyers or any professional set their rates and “consumers” either pay it or you choose whether to take on the client or not. If you feel artists aren’t entitled to the same treatment you are an elitest and all your feigned noble comments about the public ring false.”

    Oh, not at all. Authors cannot be forced to create works, and have the right to choose whether to create, and what, and with whom they themselves will share it. Pretty much any of their rights beyond that, concerning their work, is a gift, ultimately given to them by the public, for public purposes. If it’s in the public interest to have compulsory licenses, with rates set by the government — and you should note that such licenses have long existed in the US — then that’s what we should have. If it’s more in the public interest to let rightsholders decide things for themselves, then that’s what we should have. The public interest is often at odds with the interests of authors. I don’t know why you’d expect it to be otherwise.

    John Warr–
    “Does your government dictate the price of bread, or drugs?”

    They’ve been known to do so. There’s even been a lot of call in recent years for further price controls on pharmaceuticals as part of our health care reforms.

    Meanwhile, and perhaps more significantly, we’ve also had laws forcing the licensing of certain rights pertaining to songs at government-set prices for over a century; that’s actual laws, not just this voluntarily-entered-into decree.

    “the broadcasters weren’t compelled to use ASCAP licenses”

    That’s correct. But ASCAP was engaging in illegal, anticompetitive practices, both against their own membership and against other industries. They volunteered for this decree rather than face punishment in the courts. I see no reason why it shouldn’t continue — they themselves considered it getting a better deal than the alternative, and the effects have been beneficial and just.

    Incidentally, BMI also got into trouble itself, and is subject to a similar order. The third big organization is SESAC, which as far as I know, has kept to the straight and narrow. And of course, songwriters could band together to create a fourth organization, or could act independently. None of these are good reasons to let ASCAP, a known offender, off the hook, though, or to tolerate misconduct by anyone in the future.

    • “it [consent decree] sets the rates to whatever amount ASCAP can prove is reasonable.”

      This is not accurate…
      ASCAP is strictly forbidden to use any evidence of what ‘fair market rates’ might be. This is such nonesense.

      “Oh, not at all. Authors cannot be forced to create works, and have the right to choose whether to create, and what, and with whom they themselves will share it. Pretty much any of their rights beyond that, concerning their work, is a gift, ultimately given to them by the public, for public purposes…”

      Oh please. Insert any other product in there, and it doesn’t hold up. Instead of ‘author’ put “toymaker” and tell me you feel the same..

  • Once again what is so special about a song? Seems that whenever the songwriters got together to request higher fees the Government stepped in. Looks like a simple trade dispute to me, with the government imposing laws to favor capital against the collectivized individual.

    • John Warr–
      “Once again what is so special about a song?”

      Well, that’s a good question. I’m not sure, honestly. Perhaps you could tell me — What’s so special about a song that would justify a get out of jail free card, as it were, for antitrust law violations to which the offending organization has either pled no contest or been found liable for?

      Why should we let them off the hook, and able to do as they please, when such unlawful activities would be prohibited if someone else did it?

      Shouldn’t we treat ASCAP the same as any other business, obligated to follow the same laws regulating commerce, pursuant to the constitutional authority of Congress to regulate it?

      James J–
      “This is not accurate…
      ASCAP is strictly forbidden to use any evidence of what ‘fair market rates’ might be. This is such nonesense.”

      Well, I don’t normally deal with the consent decree, so perhaps I’ve missed it, but could you please cite the part of it that establishes that? So far as I knew, the only thing that comes close is that when licensing begins with a new industry, the rates for the first five years of licensing to that industry are not usable as evidence by either side (except as to an interim agreement), the idea apparently being that for a while it’s too early to know what a good rate will be. Given that Internet streaming has been around for something like 20 years now (remember RealAudio?) the five year rule shouldn’t be a problem. I’m keenly interested to see the language in the decree that you identify.

      “Oh please. Insert any other product in there, and it doesn’t hold up. Instead of ‘author’ put “toymaker” and tell me you feel the same..”

      Well, it’s no secret that property law is just as artificial and just as utilitarian in nature as copyright is. Mutual, voluntary agreement is what allows a copyright to justifiably exist. The same goes for real and personal property. If enough people agree that songwriters aren’t allowed to refuse to license songs, then that’s the law. If enough people agree that toy makers aren’t allowed to sell lawn darts, then that’s the law.

      How did you think it worked? Did you think that God came down from the heavens and said “Thou shalt have no interest in property, unless it must vest, if at all, not later than one and one score years after the death of a life in being at the the time of the creation of the interest. I am The Lord thy God, and thou and all thy descendants shall find this Rule Against Perpetuities annoying to put into practice.”

      • [Shouldn’t we treat ASCAP the same as any other business]

        Isn’t it a collecting agency? More like a Trade Union setting a right for its member against capital.


        Whenever the legislature attempts to regulate the differences between masters and their workmen, its counsellors are always the masters. When the regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the masters.
        Adam Smith, “The Wealth Of Nations”, pg. 151

      • RE please cite ….

        Look no further than the
        https://beta.congress.gov/bill/113th-congress/senate-bill/2321
        that bill is trying to rectify this injustice.

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