At a recent Department of Justice public workshop, Songwriting Hall of Fame member Jon Bon Jovi defended the antitrust agreements, known as consent decrees, between the DOJ and the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc (BMI) – two predatory music monopolies that he compared to Big Tech.
ASCAP and BMI are known as Performing Rights Organizations (PROs). Together, they control over 90-percent of all music and license it everywhere that popular music is heard, including restaurants, stores, bars, radio stations, and coffee shops.
In 1941, the Department of Justice entered into consent decrees with these two cartels to protect businesses, performers, and consumers of music from abusive behavior. The decrees make ASCAP and BMI include all of the songs in their repertoires within one single, affordable blanket license to any licensee that requests access.
The DOJ’s Antitrust Division is currently reviewing the ASCAP and BMI consent decrees and analyzing whether they should be modified or terminated. But at the recent DOJ event, Bon Jovi implored the DOJ to not make any changes to these rules that restrain “the big market players.”
“I know that ASCAP and BMI are the largest PROs. And I understand that they’re big, like the telephone company or the Big Tech companies,” he said. “The decrees are in place to protect ASCAP and BMI from using their market power against the small players in the system. And the smallest player, but the single most important in the whole public performance space, is the songwriter. With the existing rules, the system has been working. Songs get licensed, fans get to hear their music, and songwriters ultimately get paid.”
Later in his remarks, Bon Jovi cautioned the DOJ against listening to special interests’ push to empower these two monopolies.
“I understand that lots of lawyers, economists, and politicians have come together both yesterday and today to talk about the consent decrees and whether they should be changed. But I am here to implore you to think about songwriters when you are discussing these rules,” he said. “On behalf of all those aspiring songwriters out there, I implore you, please do not disrupt the system and change the decrees. Do nothing that can potentially harm the individual songwriter.”
“All musicians know the drill: to become noticed and develop a fan base, many performers need to first play covers in small venues, including bars and restaurants. The Black Keys started their career at the Beachland Ballroom & Tavern in Cleveland while The Killers began at an open mic night at the Café Espresso Roma in Las Vegas,” he wrote. “In the absence of these agreements between ASCAP/BMI and the DOJ, far fewer small businesses would entertain the prospect of promoting local artists because of the higher costs they would incur as a result of their price-gouging of performance licenses. It would amount to a win for big music executives and a net loss for everyone else.”
On May 12, 2016, the Justice Department settled a civil contempt claim with ASCAP, where it “agreed to pay $1.75 million and reform certain practices to settle allegations that ASCAP violated a court-ordered consent decree designed to prevent anticompetitive effects arising from its collective licensing of music performance rights.”
On August 4, 2016, it concluded a review of the ASCAP and BMI consent decrees and found that it should make no modifications. On June 5, 2019, the Antitrust Division announced that it re-opened a review of these decrees “as part of The Department of Justice’s ongoing review of legacy antitrust judgments.”
During his confirmation hearings, now Attorney General William Barr stated that he “will work with the Antitrust Division to ensure that [the Judiciary Committee] is informed of the Division’s intentions a reasonable time before it takes any action to modify or terminate the decrees.”