Earlier this week, lawyer and nationally syndicated radio personality Edward Woodson wrote an editorial for The Hill in which he delivered an analysis of BMI’s recent victory against the Department of Justice that is fundamentally inaccurate. Woodson’s assertions misrepresent the procedures of ASCAP and BMI. But, being that Woodson cited BMI by name, we feel compelled to respond and correct the misconceptions.

Despite widespread and detailed reports about the overturning of the Department of Justice’s proposal to impose a 100 percent licensing model on our organization, Woodson wrongly characterizes the business practice of BMI (and, for that matter, ASCAP) as one already based on a rule of “whole work” (i.e. 100 percent) licensing.

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To be precise, throughout our 76-year history, BMI - and the industry, for that matter - has always effectively licensed on a fractional basis. The DOJ only recently raised the proposal of a 100 percent licensing model in response to our petitions to modernize our outdated consent decree. It was never an issue raised by BMI.

Judge Louis Stanton swiftly denied that proposal in federal rate court, recognizing that the language in BMI’s consent decree completely allows for the longstanding industry practice of fractional licensing.

In no uncertain terms, fractional licensing has been the practice for the music marketplace, and has been for decades. This is true not just for BMI and ASCAP, but also for our non-regulated competitors like SESAC and GMR, who are free to engage in a fractional model if they so choose. Not only that, fractional licensing is a standard practice for all fields involving intellectual properties. Copyright holders have always had the ability to license their portions of their work, their ideas, their art, their inventions and, yes, their music.

The upheaval in the marketplace Woodson so ominously describes would actually occur with the implementation of the DOJ’s decree interpretation, and not from maintaining the status quo. Contrary to the editorial’s description, a mandated 100 percent licensing model could potentially remove thousands of works from the repertoires of ASCAP and BMI, rendering them “stranded.” For our organization, this means works split between BMI and any other organization would be un-licensable until the necessary research was done to verify whether they were eligible to remain part of the BMI repertoire. This would completely decimate the immediate accessibility to which radio and other music users have long been accustomed. This scenario would complicate business transactions for all parties concerned.

BMI feels obligated to correct the misstatements in Woodson’s editorial and present the facts. Given our organization’s longstanding dedication to protecting the interests of songwriters, composers and music publishers, it’s imperative that there be a clear understanding of the issues surrounding 100 percent vs. fractional licensing, and BMI is grateful for the opportunity to provide that clarity.

Stuart Rosen is the senior vice president and general counsel of BMI, overseeing global operations of the legal department, directing the organization’s legal affairs, as well as all attorneys working within the company.


The views expressed by authors are their own and not the views of The Hill.