On Thursday, the United States filed its brief in its appeal of a decision by the district court for the Southern District of New York, which rejected the US Department of Justice’s earlier determination that a longstanding DOJ consent decree governing BMI requires “full-work” (or “100%”) licensing. Rather, the district court held that BMI can engage in “fractional licensing.”
BMI is a performing rights organization (a “PRO”), which aggregates its members’ rights for the public performance of copyrighted musical works and collectively licenses those rights to music users, such as radio and television stations, internet radio stations (e.g. Pandora), interactive streaming services (e.g., Spotify), websites, bars, restaurants, and fitness clubs. BMI and ASCAP are the two largest PROs in the United States, and each are governed by DOJ consent decrees, which were first entered into in 1941. SESAC and the recently-established Global Music Rights (GMR) are the two other PROs in the United States. SESAC and GMR are not subject to DOJ consent decrees.
The district court’s September 2016 decision was applauded by BMI and the other PROs, as well as other songwriter and music publishing stakeholders. Licensees of music public performance rights, such as radio and television stations, however, decried the district court’s decision.