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US songwriters seek to stop dismissal of their 100% licensing lawsuit

By | Published on Thursday 9 February 2017

US Department Of Justice

The Songwriters Of North America organisation has filed a motion against the motion filed by the US Department Of Justice against its lawsuit over 100% licensing. Which is quite a sentence, isn’t it?

So, you’ll remember that, last year, after reviewing the consent decrees that regulate US collecting societies ASCAP and BMI, the DoJ decided [a] not to change anything and [b] that under current rules the two performing right organisations should be providing a 100% licensing system. That would mean a licensee could make use of a song with just an ASCAP licence even if it only represented one of the songwriters on a co-written work.

The music community argues that that’s not what the consent decrees require, and that being forced to shift over to a 100% licensing system will cause all sorts of issues. When BMI took the matter to the judge who oversees its consent decree he agreed, quickly overturning the DoJ’s decision. Though the government department is now appealing that ruling, so the matters is far from resolved.

Meanwhile SONA filed its own litigation against the DoJ on the issue last September, arguing that its ruling on 100% licensing was “an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests and freedom of contacts”, and that it therefore “needs to be set aside”.

The DoJ hit back in November, calling for SONA’s case to be dismissed, mainly on jurisdiction grounds. The government department argued that “the plaintiffs cannot meet the jurisdictional requirements of standing and ripeness because they do not allege any injury they have suffered or will suffer because of the statement [on 100% licensing]. The statement only lays out what the Department believes is required under the consent decrees; it does not change the terms of the consent decrees or have any effect separate from the consent decrees”.

But, according to The Hollywood Reporter, legal reps for SONA have now hit back, arguing that the DoJ is wrong to down-play the significance of its statement on 100% licensing, which might not amend the consent decree put does force a totally different way of working on the songwriting and music publishing community.

They also argue that this is not simply a dispute between the DoJ and the two big song right collecting societies, because the government’s decision impacts on the rights of the individual songwriters BMI and ASCAP represent.

The SONA motion says that its original lawsuit raises “claims that cut to the core of what we hold out to be our democratic values: the rights to freedom of speech, freedom of association, freedom to own and control one’s intellectual property, and freedom from government interference with their most intimate creative relationships”.

While BMI and ASCAP continue to fight the 100% licensing decision through the courts and in Congress – in addition to the SONA action – the music community also waits with interest to see whether the incoming new regime at the DoJ will take a different approach and back down on forcing the change on the collecting societies. Some reckon they might – a potential upside for the songwriting community of the Republicans now being in command in Washington.

Though once the US government has been officially merged with the Trump Organisation, and the Department Of Justice rebranded Trump Law, who knows what will happen? Tracks criticising the President will presumably be declared “fake songs” and be deprived any copyright protection at all.


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