DOJ Antitrust Disputes BMI's Claims in Consent Decrees Decision Legal Challenge
Broadcast Music Inc.’s claim that DOJ’s final decision in its review of the American Society of Composers, Authors and Publishers and BMI consent decrees “marks a radical departure from existing practice is belied by its own statements, is disproven by…
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its own practices, and, if accepted, would undermine the value of BMI’s license,” said Justice’s Antitrust Division in a court filing Tuesday. Antitrust made its filing (in Pacer) to rebut BMI’s legal challenge to the consent decrees decision in U.S. District Court in New York. BMI is leading the legal challenge via its rate court proceeding (64-03787) with Judge Louis Stanton, claiming in part that DOJ’s decision to issue language clarifying that the department continues to believe the existing decrees mandate 100 percent licensing “would contradict decades of historical practice” (see 1608040066). “As BMI itself acknowledged more than a year ago, BMI’s consent decree ‘has been construed to compel BMI to grant licenses to perform the "composition" -- not merely the partial interest in the composition owned by BMI’s affiliate,’” Antitrust said in its filing. “BMI’s unilateral request for modification, far from identifying the ‘significant change in circumstances’ required to modify a consent decree, expressly denies that the requested modification ‘is proposed to adapt the decree to changed circumstances in law or fact.’” BMI-granted licenses “never granted rights to ‘interests in compositions,’ and always granted licensees the ability to ‘perform’ the compositions,” Antitrust said. “BMI does not explain how a licensee could ‘perform’ an interest in a composition.” BMI’s “recognition last year of the decree’s ‘apparent requirement of mandatory licensing of the entire composition’ should end any argument that the Division’s interpretation marks some sort of radical departure,” Antitrust said. “And BMI’s consistent practice of granting licenses to perform works, and describing them as such, should make clear that it would be a departure not to provide full-work licenses.”