{"id":4855,"date":"2017-02-09T19:13:15","date_gmt":"2017-02-09T19:13:15","guid":{"rendered":"http:\/\/sls.gmu.edu\/cpip\/?p=4855"},"modified":"2026-02-03T21:02:09","modified_gmt":"2026-02-03T21:02:09","slug":"sona-and-songwriters-fight-dojs-misguided-100-licensing-rule","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2017\/02\/09\/sona-and-songwriters-fight-dojs-misguided-100-licensing-rule\/","title":{"rendered":"[Archived Post] SONA and Songwriters Fight DOJ\u2019s Misguided 100% Licensing Rule"},"content":{"rendered":"

\"\"Things are heating up in the lawsuit filed by Songwriters of North America<\/a> and three of its members (SONA) challenging the new gloss of the Department of Justice (DOJ) on the 75-year-old consent decrees<\/a> that govern the licensing practices of ASCAP and BMI, the two largest performance rights organizations (PROs). SONA sued the DOJ on September 13, 2016, questioning the DOJ\u2019s reinterpretation of the consent decrees to require the PROs to license all of the works in their repertories on a 100% basis. As reported<\/a> by Billboard yesterday, CPIP Senior Scholar & Director,\u00a0Copyright Research and Policy Sandra Aistars<\/a> is assisting SONA\u2019s legal team at Gerard Fox Law PC<\/a> in the litigation.<\/p>\n

After completing a two-year review of the ASCAP and BMI consent decrees, the DOJ issued a statement<\/a> on August 4, 2016, concluding that the decrees require the two PROs to offer only \u201cfull-work licenses.\u201d On this view, the PROs would not be able to continue licensing the fractional interests in the musical compositions owned by the songwriters they represent. As the U.S. Copyright Office noted<\/a> in early-2016, such fractional licensing is a “longstanding practice of the music industry.\u201d Nevertheless, the DOJ claimed that the change \u201cshould not meaningfully disrupt the status quo in the licensing of public performance rights.\u201d<\/p>\n

This assertion was immediately challenged by the PROs. ASCAP President Paul Williams issued a statement<\/a> that same day vowing to work with BMI \u201cto overturn the DOJ\u2019s decision\u201d in both Congress and the courts. BMI filed a letter<\/a> with District Judge Louis L. Stanton, who oversees BMI’s consent decree, announcing its intention to seek a declaration that the decree \u201cdoes not require 100% licensing.\u201d Six weeks later, Judge Stanton issued an opinion<\/a> declaring that BMI\u2019s consent decree \u201cneither bars fractional licensing nor requires full-work licensing.\u201d The victory was celebrated<\/a> as a win for songwriters, and both ASCAP<\/a> and BMI<\/a> issued statements praising the decision. The DOJ has since appealed the issue to the Second Circuit.<\/p>\n

In its complaint<\/a> filed in the District of Columbia, SONA argues that the DOJ\u2019s 100% licensing rule violates songwriters\u2019 due process rights, both substantive and procedural, under the Fifth Amendment as well as the Administrative Procedures Act. Calling the DOJ\u2019s rule \u201ca dramatic departure from the status quo,\u201d SONA points out that it will \u201climit and undermine the creative and economic activities\u201d of songwriters by forcing them to \u201cundertake the burdensome and potentially costly process of revisiting and amending their core business practices, private contracts, and collaborative relationships\u201d in order to comply.<\/p>\n

Arguing that the case should be dismissed, the DOJ challenges<\/a> the standing of SONA to even invoke the court\u2019s jurisdiction. The DOJ claims that any harm caused by the consent decrees is too speculative and remote to create an actual case or controversy, and it suggests that no songwriters have been deprived of any protected liberty or property interest under the Due Process Clause. In its opposition brief<\/a> filed this past Tuesday, SONA strongly opposes that contention:<\/p>\n

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[P]laintiffs have alleged and will prove at trial that [the DOJ\u2019s] new rule has caused immediate injuries and will cause imminent injuries to each plaintiff, thus establishing standing. Plaintiffs have also pleaded facts sufficient to show that the government\u2019s action is interfering with their freedom to contract, freedom of association, and freedom of speech, and that the government has taken their valuable intellectual-property rights without compensation, thus violating plaintiffs\u2019 substantive and procedural due-process rights.<\/p><\/blockquote>\n<\/div>\n

Admonishing the DOJ\u2019s \u201ccasual disregard for the welfare and livelihoods of America\u2019s songwriters,\u201d SONA points out that, under the DOJ\u2019s new rule, songwriters will:<\/p>\n

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