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Guest post by Chris Castle of Music Tech SolutionsLet’s be clear–one reason why there are problems with mechanical licensing in the US is the loophole created by the government consent decrees that block ASCAP and BMI from issuing a “unilicense” for both performances and streaming mechanicals. I have argued for years that PROs should be allowed to administer existing statutory mechanical licenses for services that they already license on the performance side of the song. Personally, I think it is the main reason for creating the situation (such as the mass address unknown NOIs) that gets abused by the services like other loopholes.I’m not alone in making this argument for “bundling” rights to be administered by PROs: According to the Copyright Office Music Licensing Study (pp. 103-104):“NSAI, for example, opined that ‘[t]he most efficient path to digital service providers obtaining necessary licenses would be to allow the PRO’s to license and collect mechanical royalties;’” “NMPA suggested that bundled rights could be sought directly from the music publishers that own and administer the song in question. But the PROs suggested that their existing structures could be leveraged to facilitate bundled licensing on a blanket basis, if only the consent decrees were amended.”My view is that bundling should occur at the pubisher level and also at the PRO level for all publishers who do not license directly.Remember–streaming mechanicals track the exact same song, the exact same use, the exact same copyright owners, the exact same transactions and the exact same services as the PROs already license on the performances. The PROs already have the most comprehensive ownership databases for songs and those databases are immediately accessible. This is likely to remain true for a long time.The ASCAP and BMI consent decrees have been in place for decades. We accept them as a fact of life, something of an immovable object. For example, the only part of the Music Modernization Act that affects ASCAP and BMI relates to changes that these PROs evidently would like to make to the consent decrees but cannot get the Justice Department to address. (“Part” may be overstated–it’s about 1-1/2 pages out of the 151 page bill.)But–what we were told at the outset of the MMA is that legislation to sunset the consent decrees would never pass due to the lobbying power of the digital media companies, the broadcasters, and the general business establishments. The MIC Coalition, in other words. And supposedly we can’t beat them, so we need to give up on that idea and take what we’re given and like it. (Good thing that guy was not at the Alamo, the Edmund Pettus Bridge, Thermopylae or the Battle of Britain. Horatius he ain’t.) This is, of course, entirely the wrong approach–if that thinking is not the ennui of learned helplessness, what is? As the Reverend Martin Luther King, Jr. said, “Ultimately a genuine leader is not a searcher for consensus, but a molder of consensus.”No one considered what would happen if the consent decrees actually went away either entirely or substantially because the DOJ wanted them to. If that happy event came to pass, I would suggest that there would be little to nothing in the Music Modernization Act of any value or relevance to ASCAP and BMI. If anything, the collective established by the MMA is or could easily become a direct competitor of all the PROs which is likely why the broadcasters are “positively neutral” on the bill. I seriously doubt that any of them anticipated the consent decrees might go away.Makan Delrahim, the new head of the Department of Justice Antitrust Division, may have just obviated any reason why the PROs should support the MMA or perhaps whether the MMA is even relevant.
