The U.S. Deptartment of Justice's ongoing review on whether the ASCAP and BMI consent decrees should be amended, sunsetted or simply left alone will likely be concluded before the end of the year, according to a comment made Aug. 13 by Makan Delrahim, the DOJ assistant attorney general for the antitrust division.
U.S. Department of Justice assistant attorney general Makan Delrahim said the DOJ has 850 comments to review before it reaches a decision.
"Today's consent decrees are no longer than 10 years long, but prior to 1979 the judgements were perpetual," he said. As a result, there are plenty of decrees still in effect on the books, even in instances where they were with companies that have gone out of business. Another decree recently terminated from 1957 prohibited distributors of coin-operated phonographs from restricting their resale, while another longtime decree aimed at the British company named Decca and the American company of the same name has long been irrelevant since both those companies are now owned by the Universal Music Group.
But beyond that, Smith said there is a continued need for the consent decrees, or at least some replacement architecture that preserves what he termed a "remarkable free market” that would turn into "chaos" if the DOJ decides to have them sunsetted. Moreover, like other past copyright related legislation, Smith said the Orrin G. Hatch–Bob Goodlatte Music Modernization Act "contemplates the continued existence of the consent decree" and includes language ensuring enhanced congressional review for any DOJ changes to the decrees.
"If you want to sunset the decrees that would be fine; but if it isn't resolved by Congress at some level [during the transition to sunsetting] then the default at the end of the [period] should be the re-imposition of those decrees," he argued. "So the DOJ should work with the many legislators who weighed in on the MMA process to help develop an alternative framework prior to a revision of the decrees; or their sunsetting.
Things have changed dramatically in the 80 years since the ASCAP decree began, she said. For example, instead of dealing with independent radio stations there has been considerable consolidation in that sector. Likewise, ASCAP is dealing with companies like Facebook, Amazon, Apple and Google, which she described as "savvy smart tech driven companies that are all lawyered up and incredibly unregulated," she added.
But beyond parity during a transition period, ultimately ASCAP would like to put itself "on a pathway with licensees to a free market," she said.
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