This is an excerpt from a compelling article by Chris Castle for Music -Technology – Policy. Please read the section provided here, and we hope you’ll click through for the full text.
The Declining Utility of the ASCAP and BMI Consent Decrees
Songwriters also have the government’s boot on their necks in the form of the ASCAP and BMI consent decrees regarding the public performance right for songs. Established decades ago, the consent decrees have been running longer than Phantom of the Opera but, I would suggest, to very poor notices especially recently.
Again, it is hard for songwriters to understand why the government permits companies like Google largely to escape antitrust regulation, but decides that the American people must be protected from those songwriters. (Companies like Google seem to escape scrutiny even when Google uses the dominant market position that the government allows them to enjoy to cram down take-it-or-leave-it terms on songwriters and indie labels.) (See, e.g., Dredge, “YouTube Subscription Music Licensing Strikes Wrong Notes With Indie Labels”, The Guardian (May 22, 2014) available at http://www.theguardian.com/technology/2014/may/22/indie-labels-youtube-subscription-music)
The consent decrees undermine songwriters in three important ways: confusion surrounding withdrawal and direct licensing; use of consent decrees as a club for well-heeled licensees against songwriters in an inefficient manner that prevents the formation of alternative dispute resolution mechanisms; and creates inefficiencies in licensing that are burdensome to both licensees and songwriters.
After the last Pandora rate court decision (In re Petition of Pandora Media Inc., 12-cv-08035, U.S. District Court, Southern District of New York (Manhattan)) it appears that the consent decree requires that publishers withdraw from ASCAP altogether in order to enjoy their rights, although the court did not address what happens to the ASCAP songwriter whose publisher is forced to withdraw but who likes their PRO and wants to keep their PRO.