Next Steps For PROs After BMI’s Consent Decree Victory

Unlike the music business, competition between player-piano roll manufacturers or buggy whip makers has really died down. But one thing they all have in common is that their competitive marketplace is shaped and controlled by the same consent decrees with the Department of Justice.

"The way music is licensed has been governed by these consent decrees since 1941," said Justice Department Assistant Attorney General Makan Delrahim, who oversees the agency's antitrust division. "So 77 years of a consent decree, rates being set by a judge in rate court as opposed to free market competition … we are taking a look at that."

Speaking at Vanderbilt Law School on March 27, Delrahim described his department's present rate of progress, having reviewed two-thirds of the Justice Department's 1,300 consent decrees still in force.

"As public agencies we need to take a look and see if those consent decrees are still relevant in the marketplace," he said.

Delrahim wants to ensure that his agency's designated role enforcing U.S. laws is not sidetracked by becoming a mini-regulator or micromanager. Last month, the deadline for appeal expired on the DOJ's courtroom loss to BMI without action being taken, a hopeful sign the department is stepping back from that micromanager sideline. In line with such hopefulness, BMI President/CEO Michael O'Neill wrote a recent Billboard op-ed addressing the question, "So where do we go from here?"

"We've never been more optimistic about the future of music than we are now," said O'Neill, outlining three broad areas for continued positive change in the music marketplace.

One of the areas is updated copyright and music licensing reform, an area where the Recording Academy's continuous efforts will be on full display April 18–19 during GRAMMYs on the Hill when recent GRAMMY winners, nominees and other music creators meet directly with lawmakers on Capitol Hill.

Another area ahead is for performing rights organizations to spread into related business by licensing additional rights, which seems ripe for future developments as the internet continues to spawn new formats and digital experiences.

And perhaps the most exciting and paramount of O'Neill's future areas is what he describes as "insight and transparency into the licensing process." There is more to this than meets the eye. The fundamental level O'Neill emphasizes is BMI's database collaboration with ASCAP.

"The intention is for this to be a vital asset to assist radio stations and other businesses in assessing their music needs, while providing greater insight and transparency into the licensing process," he said.

A future where the creative catalog serves licensees while treating licensors fairly is a dream worth making into reality, and a platform for futures we can't hope to imagine yet.

Perhaps the problem to be solved with optimism is balancing the need for patience with staying proactive daily. With unprecedented music community unity on copyright reform, thousands of professionals who care are striving to achieve a legal and regulatory environment suited for innovations ahead.

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Next Steps For PROs After BMI’s Consent Decree Victory

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