Time to Scrap the ASCAP and BMI Consent Decrees?

Let’s all check our assumptions, shall we?

It’s been about 101 years since ASCAP was founded.  Certainly, it was a good idea at the time (songwriters and publishers joining together to maximize the profit from creative work, etc.)  The United States Department of Justice eventually didn’t think so, alleged a monopoly (i.e., antitrust law violations), and songwriters/publishers and the U.S.A. went to battle in a court of law.

Out came the first “consent decree,” in or about 1941.  A settlement agreement, basically, made effective by entry of a court judgment, which has been amended twice (the current version is available from the Department of Justice here).

The Department of Justice originally alleged that ASCAP was in violation of the Sherman Act (i.e., 15 U.S.C. Sec. 1).

BMI, another performing rights organization, ended up in a similar settlement with the Department of Justice.
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That may have been “the cases,” then.  I doubt it’s the case(s) now.

I suspect the performing rights organizations should be very worried, but not by the latest evidence that the Department of Justice has a sense of humor, regarding 100% licensing.

Perhaps the performing rights organizations (including SESAC) should be worried that their “members” might consider leaving the performing rights organizations altogether, in droves, to mine whatever they can by the direct licensing of their works.  Why?  Because, in this modern, digital age (with, e.g., ISRCs), it may be only a matter of time until “collective licensing” makes absolutely no sense at all.

There would be, of course, no antitrust violation in an individual songwriter, publisher, or songwriter/publisher setting the price for the use of a song.

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