Paul Goldstein Lays Down the Law to DOJ on 100% Licensing
If you haven’t had a chance to read the comments to the latest absurd rabbit hole by the U.S. Department of Justice on using the ASCAP and BMI to force 100% licensing by those PROs, here’s one you should read first.
Professor Paul Goldstein is a world-class copyright scholar and is a chaired professor at Stanford Law School. He’s also the author of an excellent treatise on copyright law and the best single volume book on international copyright law–which is heavily implicated in the DOJ questions.
He was retained by the NMPA to write a legal opinion on the subject of 100% licensing, which is often criticized as shill work. I can tell you from personal experience that Professor Goldstein has far too much integrity to sell his good name to support a legal interpretation of copyright law that he did not agree with. So don’t let anyone go there in your discussions.
Professor Goldstein concludes that the DOJ has it very, very wrong:
On the basis of my review of the applicable provisions of the Copyright Act, judicial decisions under the Copyright Act, and such other authorities as I deemed appropriate to consult, it is my opinion that United States copyright law permits a co-owner of the copyright in a joint work to require, as a condition to the grant of a 100% license to perform or otherwise exploit the copyrighted work, that the licensee also obtain a license from the other co-owner or co-owners of copyright in the work. Further, where an assumption of fractional rather than 100% licensing pervades the pricing and distribution activities of copyright licensors, courts could well find under well-accepted rules of contract construction that the grant in these licenses embodies such a condition in the absence of language to the contrary.
Every songwriter should take a few minutes to read through Professor Goldstein’s submission. It’s highly readable for the layperson and tells you everything you’d want to know about the state of the law on this issue–noting that what the Justice Department is considering at the behest of Big Tech would be a radical change in how songwriters create and earn a living, both in the US and internationally.