Deep Dive Episode 47 – The Songwriting Industry and Antitrust Consent Decrees

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Most people would be surprised to discover that music is among the most regulated of all the products and services they enjoy each day. Through a combination of historical accidents, momentum, and politics, the U.S. government has ended up strictly controlling the prices that radio stations, streaming services, and others pay to use music, and also regulating the terms of sale. This strict control has been in place since 1941 as a result of consent decrees that settled antitrust lawsuits brought by President Roosevelt’s Department of Justice. As a result, a handful of judges determine how songwriters and composers get paid for the use of their music and how they can do business.

The 77-year-old consent decrees were originally designed to regulate a marketplace that faded into history a long time ago. They pre-date streaming services, the internet, commercial FM radio, and even the birth of rock, hip-hop, and most other modern popular music genres. The music business has evolved and changed many times in the intervening years, but the consent decrees march on determining how songwriters are compensated.

The Department of Justice has recently announced a review of aged consent decrees, with Assistant U.S. Attorney General Makan Delrahim targeting the music licensing consent decrees for particular scrutiny.

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Kristen Osenga

Professor of Law

University of Richmond School of Law

Mark F. Schultz

Professor of Law

Southern Illinois University School of Law

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