The Day The Music (Almost) Died

No matter where you live in the U.S. you may be able to hear the collective, thunderous applause emanating from Nashville. Of course, if you are a songwriter or composer, the same applies wherever you may roam: New York, Los Angeles, Chicago, Atlanta, and every other square inch across the fruited plain.

I am referring to the August 16th ruling by BMI rate court judge Louis Stanton, striking down the Department of Justice recent mandate, ordering Performance Rights Organizations (BMI, ASCAP) to adopt a 100% licensing model within 12 months.

100% license is, in short, the discontinuance of many decades of mainstream music licensing protocol, thereby stripping the copyright owner(s) (writers and publishers) of licensing their works on a fractional basis.

Why does this matter?

By example, assume that song A has three writers, each contracted with different publishers, for a total of six legal claimants to copyright royalties (fees) associated with that work. The current model allows all six claimants to license their fraction of ownership interest to whatever Performance Rights Organization (BMI, ASCAP, SESAC, etc. which monitor and collect copyright royalties) they choose.

100% licensing essentially divests copyright claimants of control, fractures the system, threatens the creative process, increases exposure to IP loss and results in a huge loss of royalty fees to those who have a legal, rightful claim to them. Think of it as a slow, progressive parasite that kills its host.

This interpretation of longstanding intellectual property law, while not entirely without precedent, albeit very limited in scope, would be an unmitigated disaster for songwriters, composers and other copyrightable creations. Music in all of its genres and varied uses would be adversely impacted by this counter-intuitive position.

According to Stanton’s ruling “The consent decree neither bars fractional licensing nor requires full-work licensing,” which is the exact opposite of what the DOJ argued when it gave ASCAP and BMI one year to employ full-works licensing.”

The only portion of the DOJ ruling that is of actual use and merit, is the rightful pointing of the finger of obligation at Congress, before quickly returning to their very disturbing and ongoing pattern of legislating from an unelected position; creating an entirely new dictate out of whole cloth, and essentially a new form of Copyright infringement. That element alone, should be of equal concern and focus.

I understand you may, to some degree consider this to be a bit of melodrama, but from where I sit, it isn’t far off the mark. In a previous life cycle, I made a living as a musician, both live and studio. Some of my dearest friends are lifelong songwriters and composers, that have decided it simply may not be worth the effort anymore. Of course, they will keep writing for the sheer love of it, but will spend less time doing so, which means decreased volume or supply. Who do you know willing to work for free? I don’t believe it can be considered mailbox money, if it isn’t worth walking to the mailbox to collect it.

Considering these people have written multi-platinum songs that most everyone in the free world are familiar with, I cannot think of a more compelling reason for long overdue, decisive action to protect their, and all intellectual property, past and future, and make it once again worthwhile to rekindle the full potency of creative energies.

Bottom line: a variety of influences have rendered songwriting and music composition significantly less feasible in the classic sense, with increased risks and exposure to loss of intellectual property and/or the revenue associated with same. Assuming you are a music lover/user, that should be of deep, contemplative concern.

It would seem that both Congress and existing laws and regulations in this area of American jurisprudence desperately need to catch up with the times. Imagine a world absent half of your favorite songs. Is ignorance truly bliss, or is it just ignorance?

Meanwhile, the only defense I can find of the DOJ ruling comes from the radio and digital music industries. Wow… there’s a surprise! What next, they hand the keys to the blood bank over to Dracula?

To be clear, Ideashares has no political affiliation. We exist to promote, assist and protect intellectual property and intellectual property holders. On our weekly radio show, we occasionally discuss laws & policies, inclusive of the regulatory environment, that represent a threat or create even more barriers to the maintenance of (or at least attempting) an optimal environment for creation, innovation and entrepreneurialism.

Politics in this context is only relevant in the sense that it is the engine that drives policy. The results and consequences of those policies, good and bad, fall to the entirety of the governing body that created them. From a macro perspective, party affiliation is a smokescreen. Look at the results. Follow the money.

Also accounting for the numerous current issues that exist at the USPTO (United States Patent & Trademark Office), how long can we afford to operate in this dysfunctional, Keystone Cop, intellectual property environment, while our trust level with the rest of the world continues to freefall? Uncertainty equals unreliability, which is not a recognized form of leadership, unless the pursuit is to achieve irrelevance. What we need is new leadership. REAL leadership.

So, after the applause ebbs, we need a thunderous national demand for our esteemed government to set aside their self-serving, political “partisan sizing, and do what they are being way overpaid to do. Although, I would be remiss not to offer a word of caution and reason for pause. After all, we are talking about the same Congress that reversed 235 years of well-functioning patent law, to give us the cryptic cluster foxtrot otherwise known as the America Invents Act of 2011.

Again I say…lead or get out of the way.

Innovate On!


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