Music lobbyists are already pressuring Jeff Sessions
© Greg Nash

Although it hasn’t even been a full week since Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsHow would a Biden Justice Department be different? Kamala Harris: The right choice at the right time Three pros and three cons to Biden picking Harris MORE (R-Ala.) was confirmed as attorney general, the special interests in the music industry are already trying to play head games with the new head of the Justice Department.

As Sessions’ confirmation hearings were underway on Tuesday, Big Music took another giant stride towards undermining the Department of Justice’s monopoly-restraining free market consent decrees. As if to send a warning sign to Sessions, the Songwriters of North America filed a motion to oppose the DOJ’s grant for dismissal of its lawsuit – a legal campaign that would allow the music industry to begin operating on a “fractional licensing” basis.

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If their campaign is successful, the music lobby’s nearly two-year legal battle will result in higher prices and limited access for music consumers everywhere. The importance of stopping them can’t be emphasized enough.

 

Despite the fact that Sessions, a former U.S. attorney for President Reagan, has always been a “law and order” guy, groups like SONA are trying to convince him that the current “whole work licensing” regime is nothing more than excessive red tape that can and should be rolled back. Of course, they couldn’t be more wrong. The consent decrees that regulate the music powers that be are all that is stopping the industry from becoming embroiled in intolerable price gouging and gridlock.

While government mandates are generally not a good thing, they serve an important purpose for taming government-created monopolies. And that’s exactly what we have in the music industry. As a result of Washington’s stifling intellectual property laws, the two largest music collectives – the American Society of Composers, Authors and Publishers and Broadcast Music, Inc. – control the rights to about 90 percent of the songs in our music catalogs.

To stop music publishers from taking advantage of both songwriters and music consumers, the government put these collectives under the restraint of free market consent decrees, which require groups like ASCAP and BMI to provide blanket song licenses to small businesses – restaurants, bars, and department stores – on demand at a fixed rate.

Overall, this process has worked rather well for all parties involved. The music collectives continue to break record revenue numbers every year, while consumers continue to receive affordable music. You’d think there wouldn’t be much else either side could ask for.

Despite the success of the whole work system, music lobbyists are pushing to move to an anarchic fractional licensing model. Essentially, this will result in the forcing of businesses to negotiate with every individual copyright stakeholder of a given song. The 1 percent owner will have the same negotiating and hold-up power as the 99 percent owner. It doesn’t take a rocket scientist to figure out that this will lead to higher costs, greater exposure to infringement suits and record-keeping nightmares.

Last year, after a two year review of the consent decrees, the Obama DOJ laudably ruled to keep whole work licensing the law of the land because they understood that altering the system would spell trouble for ordinary music consumers like you and me.. Although one single New York judge later struck down the decision, the DOJ quickly announced that it would be appealed.

Yet, now with Jeff Sessions transitioning into the Justice Department, Big Music feels that they can finally turn the tables on this issue. It’s not a coincidence that SONA filed a motion against the DOJ for its now 6-month old decision just three days ago. Music lobbyists are trying to convince the new attorney general that their interests align ideologically with President Trump’s political philosophy.

“The Republicans are pretty much horrified by the regulation of songwriters in the first place,” big-name entertainment lawyer Dina LaPolt said in a Tuesday statement, insinuating that whole work licensing is somehow antithetical to conservative principles. “They see copyright as private property that the government shouldn’t regulate.”

The truth of the matter is that real conservatives (and, as demonstrated by the Obama DOJ decision, even many liberals) see these music consent decrees as vital for keeping the free market functioning. Sen. Mike LeeMichael (Mike) Shumway LeeDavis: The Hall of Shame for GOP senators who remain silent on Donald Trump Overnight Defense: Air Force general officially becomes first African American service chief | Senators introduce bill to block Trump armed drone sale measure | State Department's special envoy for Iran is departing the Trump administration Senators introduce bill to block Trump armed drone sale measure MORE (R-Utah), one of the most stalwart conservatives in all of Congress, held a hearing on this issue and praised the DOJ for its thorough two-year review and conclusion.

Sessions, a detail-oriented member who is on his fourth term in Congress, is a smart guy. Throughout his time in Washington, he has consistently smelled and called out political corruption miles ahead of everyone else. Let us hope that he too will see the light on this issue and come to understand that Big Music’s “concern” for songwriters and music consumers, sold under the guise of free market economics, is nothing more than blown smoke used as a talking point to pad their bottom line.

Andrew Langer the is the president of Institute for Liberty, a nationally-recognized expert on business regulations, and a frequent guest host on Baltimore’s largest talk station, WBAL, as well as Cam & Company, on NRA-TV and SiriusXM’s Patriot Channel.


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