Taming the Music Monopolies

Sen. Lindsey Graham (R-S.C.) recently sent a letter to the Justice Department requesting a meeting with the Antitrust Division before the DOJ decides whether or not to change the laws governing music licensing.


As part of a larger antitrust review process, the DOJ is currently contemplating whether to remove the antitrust agreements, known as consent decrees, that currently regulate ASCAP and BMI, a duopoly controlling 90 percent of music’s public performance rights.

Graham and the Senate Judiciary Committee playing a role in this process is important because almost any business, from your local restaurant or bar to your favorite mom and pop store, will tell you that ASCAP and BMI are two of the most predatory organizations in the entertainment world today.

Before getting into specifics, let’s let the cat out of the bag: these behemoths are far from limited government advocates’ friends. The music industry gave over $8,200,000 to Hillary Clinton’s presidential campaign while only clocking in at approximately $250,000 for Trump’s. They also gave President Obama a Woodstock-sized reception for his inauguration while the president could barely scrape any musical guests of his own.

The reason for this sharp contrast in treatment between the two is obvious: unlike the crony former Arkansas IP attorney they preferred, music and Hollywood executives feared the president’s “drain the swamp” and “law and order” political mantra, worrying that he and his appointees would jeopardize their ability to change the law and reap special favors for themselves.


Despite their lack of support for the candidate, ASCAP and BMI’s advocates have resumed their same old song and dance, trying to create special favors for themselves by convincing bureaucrats in the DOJ to remove their consent decrees.

News flash for this duopoly: these consent decrees have protected market pricing for years and members of the Republican congressional leadership like Sen. Graham are going to work overtime to ensure they stay on the books no matter how much pouting and crying they do.

As written by Institute for Liberty President Andrew Langer, “Few conservatives would dispute the importance of copyrights and patents, which ensure that artists and inventors are rightfully compensated for their work. At the same time, though, intellectual property laws inherently create government-chartered monopolies, which sometimes lead to anti-competitive, stagnant marketplaces.”

Langer describes perfectly why ASCAP and BMI’s consent decrees must exist today. These two collectives did not amass 90 percent market share because of natural forces; they obtained it thanks to the government, and it’s the government’s job to ensure that they do not use this government-granted power in vain by price-gouging in a marketplace where competition is next to nowhere.


Although both ASCAP and BMI agreed to the ultimate terms over 70 years ago, in which they license their entire music repertoire through reasonably-priced blanket licenses, they have tried to weasel their way out of the system ever since, seemingly incapable of taking no for an answer.

In 2016, after an exhaustive two-year review prompted by these collectives’ moaning and groaning, the DOJ concluded with the realization that “the current system has well served music creators and music users for decades and should remain intact.”

And yet here ASCAP and BMI’s supporters go again, wasting everyone’s time by now pushing bureaucrats in the Trump Justice Department to go through this rigamarole again.

The music collectives are so stubborn that they have even tried ignoring the law to get their way.  For example, in June 2016, ASCAP agreed to a $1.75 million settlement with the Justice Department for “[entering] into approximately 150 agreements that, by their terms, granted to ASCAP exclusive rights to license the rights of public performance in the musical works of certain songwriters, composers, or music publishers, allegedly in violation of” their DOJ consent decree.

Which raises the question: why would the government even consider rewarding a lawbreaker with a predatory track record?


While it is likely that Delrahim is only reviewing the ASCAP and BMI cases to ensure that all of his bases are covered in his massive, comprehensive legacy antitrust decree examination, it is also comforting to know that watchdogs like Sen. Graham are keeping an eye out to ensure the process ends smoothly for the American people. The last thing anyone will want is for prices to rise and the free market to get less free under a Republican president.

(George Landrith is the President and CEO of Frontiers of Freedom — a public policy think tank devoted to promoting a strong national defense, free markets, individual liberty, and constitutionally limited government.)


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