Who can forget the nightmare of the Justice Department’s counterproductive flirtation with 100% licensing the last time the DOJ reviewed the consent decrees. (We covered the 100% licensing head fake in a podcast and a guide to 100% licensing.)
Since then, the Congress passed the Music Modernization Act, which includes a massive overhaul of the mechanical licensing system which is currently the subject of an implementing rule making. What does the MMA have to do with the PRO consent decrees?
More than you might think. If you recall, one of the big justifications for supporting the MMA legislation that did not include a terrestrial performance right for sound recordings was due to the lobbying firepower opposing the terrestrial right. We were told that artists were never going to win the terrestrial right (which is what the #irespectmusic campaign is all about) so we should just give up and think of England, so to speak. Or more precisely, support the MMA.
If you drill down on Title I of the MMA (which creates the Mechanical Licensing Collective, etc.), what it does at a high level is create a compulsory license for certain activities, a global rights database, and a regulatory authority for all of the above.
Note–“certain activities.” At the moment, those activities are limited to digital phonorecord deliveries, including on demand streaming, limited and permanent downloads.
But–guess what? Those activities could be expanded to include compulsory blanket licenses for other exploitation rights of songs, like general licensing (bars, hotels, restaurants), broadcasting and anything else the lobbyists can jam through. All administered by the Mechanical Licensing Collective, which if such an amendment comes to pass probably would have to change its name to something catchier like, you know, Skynet.
And remember, we don’t stand a chance against these lobbyists, right? Remember? Now whoever saw that coming? And how might the lobbyists get involved with a DOJ consent decree review? Well, because of what I call “Title IV,” which is the provisions of Title I that relate to Congressional approval of any consent decree reform for the PROs and a couple other things the PROs wanted. (Congressional review because you have to keep an eye on the anticompetitive leanings of those pesky songwriters against MIC Coalition members with a $5 trillion market cap.) So who are these masterminds and lobbyists? (There is no actual Title IV by the way, that’s just a teaching tool.)
Billboard reports that we’re not the only ones worrying about this angle:
Sources further say the PROs and some songwriter groups both fear that if the issue goes to Congress [under Title IV], the music business will face several industries with more lobbying power than themselves, all intent on getting legislation for a compulsory license. Even worse, music licensees would also likely push for the law to include 100% licensing — meaning only one songwriter’s consent would be needed for a song to be used— an outcome which publishers, songwriters and PROs have described in the past as a disaster.
But don’t worry, the smart people will figure this out. Don’t bogart the popcorn.