Comments from Bart Herbison Executive Director, Nashville Songwriters Association International, in response to the decision regarding “PRO Licensing of Jointly Owned Works” by the United States Department of Justice Antitrust Division
On June 30, 2016, as news began to filter throughout the American songwriter community that the United States Department of Justice (DOJ) would not only deny requests to amend the ASCAP and BMI consent decrees to give songwriters more leverage over their rates in a digital streaming marketplace, but the DOJ would actually call for enforcement of 100% music licensing, the reaction was palpable. At the Nashville Songwriters Association (NSAI) headquarters on Music Row in Nashville, Tennessee, the staff gathered as organization leaders told them the news. Songwriters began to call, email and some appeared at the NSAI building, the Music Mill.
After a decade of witnessing their numbers decline by 80-90%, the news was devastating, unbelievable, and frankly, just too much to absorb. The atmosphere was like a wake. We'd lost someone. We'd lost our hope. Conversation turned to questions of whether the profession of American songwriter was viable any longer.
Over the preceding two-and-a-half years, as NSAI communicated with the Anti-Trust Division of the U.S. Department of Justice through emails, submitted comments, phone calls and during meetings, we warned DOJ that implementing 100% licensing would not only be legally wrong and border on an abuse of power, but also of the practical implications that would ensue from such a determination. We began to see our dire predictions come true on that Thursday afternoon and in the days to follow. The conversations turned to whether the few remaining professional songwriters would continue to co-write songs together based on creative choices rather than the fear of the unknown implications of 100% licensing and questions of how a song licensed with only one performing rights society (PRO) would see payment make its way to the writer affiliated with another PRO. "Are you ASCAP or are you BMI?" was the question that co-writers began asking all over town, a question they'd never asked before. Music publishers held meetings to discuss the ramifications of DOJ's decision in terms of creative collaborations and the possibility of recommending restrictions on co-writing for songwriters they represent based on the uncertainties of 100% licensing. Songwriters began to question which performing rights society they should belong to due to 100% licensing. The U.S. Department of Justice upended an eco-system they never really understood.
Back in 2014 when the Nashville Songwriters Association held a conference call with numerous DOJ employees early during the consent decree examination, the first question DOJ asked us was: "Can you explain the difference between an artist and a songwriter?" The implications of that question were equally illustrative and stunning. The music industry is a very layered and complicated organism. For DOJ to "implement" 100% licensing while completely ignoring make-sense updates to a 75 year old set of rules that are more than antiquated in the digital era is arrogant and dangerous. We told the DOJ as much. So did other trade organizations and individual songwriters.
NSAI Board member Tim Nichols, a BMI songwriter, was very impassioned when he explained to DOJ in the Spring of 2016 in Washington, D.C., that his composition "Live Like You Were Dying” co-written with ASCAP's Craig Wiseman may have never been created if 100% licensing had been in effect. Tim and many, many other songwriters were among those questioning their creative collaborative choices following the DOJ decision. And that is how one writer put it saying that, “we will remember our profession as pre-DOJ and post-DOJ." NSAI and many others have already submitted comments and held meetings with the U.S. Department of Justice for lingering months over the issue for which you now request comments once again. The United States Copyright Office in a 33-page letter to DOJ outlines objections to DOJ's decision and lays a very clear and precise case for why the interpretation of 100% licensing was not only wrong, but did not take into account its ramifications. While there are many legitimate causes for concern, updating, improvement, etc., in the music industry, "fixing" a licensing and payment system that has worked for decades is not one of them. Rather than reiterating what we and many others have presented to DOJ during the long review of the ASCAP and BMI consent decrees, NSAI just wants to give the U.S. Department of Justice a quick snapshot of what has and will result from DOJ's conclusion on consent decree reform. Those conclusions have caused disruption, fear and impacted American creativity among those who give our country one of its most treasured assets and exports, the American song. We don't believe that is what James Madison and our founding fathers intended when they created our copyright.
View our initial posting about the DOJ ruling here.