Intellectual Property and Antitrust: Music Performing Rights in Broadcasting

Abstract

On June 11, 2001, the Southern District Court of New York approved a Joint Motion by the U.S. Department of Justice and ASCAP to enter a Second Amended Final Judgment (AFJ2) that vacates previous judgments. The new Consent Decree is generally a competitive improvement over its predecessor. With regard to licensing, rules are tightened in a manner that makes ASCAP's program license more competitive with its "all or nothing" blanket license; broadcasters and other users will now have more economic ability to substitute out of the blanket contract. This could save shareholders in the broadcast industry considerable amounts. With regard to writer payments, market adjustments and joint collective bargaining between writer groups and licensees will replace government rule-making as a means of valuing the relative worth of different types of music. Here the Decree may be too optimistic in its assessment of the health of competition in the market for performing rights and its ability to restore market-based compensation for all writers.