Frank Scibilia, Co-Chair of Pryor Cashman's Music and Digital Media Groups, recently spoke with Bloomberg Law about the pivotal music licensing battle underway between Broadcast Music Inc. (BMI) and the U.S. Department of Justice.
On December 1, 2017, BMI - the country's largest music licensing organization - faced off against the DOJ before the U.S. Court of Appeals for the Second Circuit in an effort to preserve the way it has historically licensed songs to radio stations, restaurants, bars and other businesses. Should the Second Circuit rule against BMI, it could overturn decades-old music licensing practices and bring about substantial difficulties for businesses seeking to play the most popular songs for their customers.
BMI has opposed the DOJ's contention that it must provide complete licenses for songs, even when it represents only some of the song's writers. In response, the government has argued that regardless of what BMI may have done historically, rules established by an antitrust consent decree issued in 1966 prohibit fractional licensing and instead require full-work licensing. As such, the government claims, if BMI can't offer full-work licensing for a composition, it has to drop that song from its repertory.
Speaking to Bloomberg, Scibilia explained, "Everyone would lose if the DOJ's position" prevailed. Scibilia, who represents copyright owners and specializes in digital music issues, noted that BMI's position is "precisely how the PROs have been licensing all along" and this system has assured "the availability of public performances of songs for the benefit of consumers, writers and licensees alike."
Several companies that pay royalties to play music, including Google, have filed briefs supporting the government's position, while numerous organizations representing music copyright holders have filed in support of BMI's position, including ASCAP and SESAC.
To read the full Bloomberg article, please click here.
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