Brooklyn Law Review


The music industry appears to be thriving with constant record breaking sales and more ways to listen to music than ever before. But behind the scenes, government regulation has struggled to adapt to changes in the industry, leaving industry players uncertain of the bounds of copyright. Decades ago, the two most prevalent Performing Rights Organizations—entities that collect royalties for songwriters and publishers based on public performances of their musical compositions—in the United States, ASCAP and BMI, entered into consent decrees to assuage antitrust concerns. Last amended over fifteen years ago, these decrees govern the music licensing practices of a vast majority of the nation’s songwriters and those who purchase the rights to publicly broadcast their music. Due to the changing nature of how consumers listen to music, these decrees have lost much of their practical significance today. In the age of digital music, how can something written before iTunes existed really account for the way music is listened to and licensed today? Due to the antiquated nature of these consent decrees, paired with ongoing digital music advancements, this note suggests that a decision on a standard music licensing practice cannot be made without first amending the consent decrees, and ultimately advocates for the installation of a dedicated committee to oversee public performance licensing.