Second Circuit’s BMI Decision Commendably Overturns the Justice Department’s Interference with Efficient Contracting in Performance Rights Licensing

Introduction and Summary On December 19, 2017, the U.S. Court of Appeals for the Second Circuit presented Broadcast Music, Inc. (BMI) with an early Christmas present.  Specifically, the Second Circuit commendably affirmed the District Court for the Southern District of New York’s September 2016 ruling rejecting the U.S. Department of Justice’s (DOJ) August 2016 reinterpretation of its longstanding antitrust consent decree with BMI.  Because the DOJ reinterpretation also covered a parallel DOJ consent decree with the American Society of Composers, Authors, and Publishers (ASCAP), the Second Circuit’s decision by necessary implication benefits ASCAP as well, although it was not a party to the suit. The Second Circuit’s holding is sound as a matter of textual interpretation and wise as a matter of economic policy.  Indeed, DOJ’s current antitrust leadership, which recognizes the importance of vibrant intellectual property licensing in…

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